AEL Zambia PLC v Simwinwa (Appeal 223 of 2015) [2018] ZMSC 307 (7 September 2018)

Jl IN THE SUPREME COURT OF ZAMBIA APPEAL NO. 223/2015 HOLDEN AT NDOLA (CIVIL JURISDICTION) ~~ BETWEEN: AEL ZAMBIA PLC AND SWIFT SIMWI. NWA APPELLANT RESPONDENT CORAM: MAMBILIMA, CJ, MALILA AND MUSONDA, JJS On 4th and ~b Septembe,r, 2018 For the Appellant: For the. Respondent: No Appearance Mr. Chanda Chilufya, of Derrick Mulenga & Company JUDGMENT MAMBILIMA, CJ delivered the Judgment of the Court. CASES REFE. RRED TO: 1. RAINWARD MU'BANGA V. ZAMBIA TANZANIA ROAD SERVICES LIMITED ( 1987) ZR 72; 2. BRIDGET MUTWALE V. PROFESSIONAL SERV1CES LIMITED (1984) ZR 72; 3. THE AT'l'ORN'EY·GENERAL V. MARCUS KAMPUMBA ACHIUME (1983) ZR 1; 4. SHILLING BOB ZINKA V. ATTORNEY GENERAL ( 1991 / l 992) ZR 73; 5. THE ATTORNEY GENERAL V. RICHARD JACKSON PHIRI (1988/ 1989) ZR 121; 6. BOSTON DEEP FISHING CO. V. ANSELL ( 1888) 39 CH. D 339; 7. NATIONAL BREWERIES LIMITED V. PHILIP MWENYA, SCZ JUOGM. ENT . NO. 28 OF 2002; 8. AGHO. LOR V. CHEESEBROUGH PONDS (ZAMBIA) LIMITE. D (1976) ZR. 1; ]2 9 . Z.t\MBIA AJRWAYS CORPORATION LIMITED V, G.&RSHOl\t B . B . MUBANGA (1990 / 1992 ) ZR 149, 10 , AlSTlfORPE V. MA. RX CHILDCARE DlRECT LTD (2.0rl, UD 3 41/ 2010 11 .. ZAMBIA NATIONAL PROVIDENT FUND V . YEKWEN1KA MBINIYA CHJRWA (1986, ZR 70, 12.. BANK OF ZAMBIA V . JOSEPH KASONDE jl99S.l 997, ZR 2 3 8 : AND 13 . SWARP SPlNING MILLS V . SEBASTIAN CHILESHE AND 3 0 OTHERS (2002) ZR 23. 1.0 INTRODUCTION l. I This appeal, emanates Crom a j udgrncnt of the High Court, in an employment dispu te co1omericed uy the Respondent against the Appellant by way uf ..i Wt'it or St.1mmons and a Stateu1enr of Clai.ru lo that Judgment. wluth was delivered on 8•h Mriy, 2 0 ·15 , the lower l..:011rt hald, among other!'i, that lhc term~nation of the .and unlawful and consequently aoc:ording).y. ordered tbe Appcllan ~ to reinslu tl! the Respondent. 2 ,0 BACKGROUND 2. l The- !'acts leading lo U1ls ulspul • ,,re cornrr1on canst=, 'T'hr! Respondc-:nt was employed b.}' l h~ Appellant o n 1 q11, Mut:ch, 1 Y9~ ,l:-. a. Bulk Assistant Operolor, He was b~1secl • at the AppeJlant's Mufulira S1te. He was later promotccL LO the position of UBS Supervisot· and the said promotion was confirmed on 18ill May. 2006 with e(fecl from 1s, June.2006 2 ,2 ln a letter dated 26th March, 2007, the Appellant transferred the Respondent to its UB S site in Kitwe. In the said letter of t ransfer, the Respon:dent was instructed to be reporting. to the Maintenance P'oreman and to be getting instructions regarding bis w.ork from the said Foreman. 'fhe let:ter also stated that the Respondent wotdd continue to enjoy the· salary and benefits which were applicable to his position and grade. 2.3 On 21 $t April, 2007, the Respondent wrote to the Appellant's Human Resources Manager, raising some concerns in relation to the tnanner in which his transfer to Kit\ve had been handled. One of the concen1s was that although some of his conditions of senrice had been maintained, he had been abased in his status. v;ithotit indicating why that had bee11 done. This complaint related !o the inslrl.lction in the letter of transfer u1at Lhe ;A R,·spontlenl shou f<i be- reporting lo lht• M,11ntenunec Poren1an. According lo the Rcspondenl, the M::u.rltenanc:c Foreman wae his junior in the Company's hierarchy, 2.4 On 22n,1 July. 2009. tbe Appellant. lh1'0\.1gh its UBS Su perintendent , Mr. Thomas M\VfTA (v:ho testified -as DW I in the lower Court). vcrba1Jy told the Respondent that hi:- had been transferred to Lonshi Mme in the Democratic Repu'blic of Congo . DWl w;,;is the Respondent's imrned iate su pervisor. Thi:! Respond ent's rcnctio11 to thi~ 'verbal' transfe r ~parked the! events which eventually led to his dismissal from employment. 2.5 Barely sevctl days later, on '.!9th J uty, 2009, DW 1 chaYged the Respondent wftlt three disciplinary offenct!s. ruimcl_y 1 n bsenteeisrn for lhrcc wor king days; fai lw·c to foUaw the established grl~vtt11C~ procedure. arid. iris w burdl !'\A tion. 'rl te details o r the cho1.rges were stated as follows: " On 22nd July, 2009 you were instructed by your supervisot to get yourself pTepared to go and wor-k l\t Lonshi Mine DRC in order to relieve Collins Sangambo who has worked fo r more tha.n 3 months now-. The supervisQr the conditions and to you incentives you wiD get whilst w orking at Lonshi M1ne DRC. You totally rel\ised to accept the Instructi ons given to y ou." explained ' ' J.6 On l} •h August, 2009, tht Appellant conducted a d isciplinary h earing for the above charges. The disciplinary hewing was- chaiJ,ed by a Mr, Joseph MWANZA, the AppeliaJ11t's Production Conrroller. Also present during the hearing wt-re' OW] ; 'l'homas MWITWA, and tt M.r . Mike MWANAU'l'E, U1t: Human Resoutces Man ager (he t·estified as· D\V2 in th~ Court belowj. ~- 7 The, Responde nt was found guilty on all the rhh;:e charges and in a letter dated 10111 Augu.si. 2009, authored by Mr ,lt>:s<!p h MWANZA, the Responctent was informed that h.e had been su1un1arily dismissed from Lhe Appellant's en1ploy111<tnt wiih immediate effect . A copy Qf d1c letter of d ismissal is produced. on page 99 c,f the rccorcl of appcaL Ct1rl01:tsly . nllhou gh it is clat<Jd 101'1, /\ugus1, 2009, it 1'efers to a case hearing bdcl or1 l 111t August 2009. !t tt-,.ads, in i:n u·t: .follow " Reference is made to the charge of absent~elsm. failure to B. Dd insuhoTdination Taised against you on 29th July 2009 and the subsequent case he al'ing on 11 tfi August, 2009. established grievance procedure The three above mentioned charges are very :serious offences, which cannot' b e condoned by AEL Zam.bia PLC jE to carry out 1'11W.agement. It wu proved during the ,case hc11J<l11g that you are guilty of the charges ra'ised a gainst you and that you a.re setting a very bad example as a supervisoi' by instruction from yo'Ur lawful failure immediate supervii;or (Ubs Superintend.anti and from your Departmental Man age r. You al"So did the same to the Company Human Resources Manager where you even walked oµt of the office an<l only Teturned the following day wjth nn application letter of r e tirement." 2.8 The Respondent was tnld that b e was free to oppcal it(rct.in::,l (he dismissal th ron gh th ~ Human Resourees Manager within thn:c workirtg daJ:$ frnm I Ile date nf rccoiving the letter of dism1ssaL. In llis letter c'lf reply. the RcspondcnL ihdicatad that he would !10t go through tht intrm,u ,ippea.l ptocedurc b\.lt would instead ·seek wh.o.t h1: rc.fc-rrcd to as a 1Jogal option.' 3.0 TKE CASE FOR THE RESPONDENT .~. 1 lt would nppcar t.hnr I.he 'legal option' that the t<espond~nl n:s<Jrted 111 was !10 sue lhc.c- Appellanl in the High C(Jurt clahning an1.ong others_ '' II) damages for wrongful and / or unlawful dismissal from employment; (ii) Damages for breach of contracti !iii) An order that be be deemed to have been reinstated and retired frQm e-l!lployment; (iv) Payment or alludes which the Defe nllant has no't pajd and thcse·wbicb the Court may fin to be payable." JI 3 . I Pn. Jn-l tht.> pleadings and the ~vjdenct' on record. it is evielerit tlial the Respon dent was not h1:.1.ppy with the ri::porting structure when he was transfen-ea to Kitwe . 11 1 the Court below, he claimed that it was an eiq-)ress condition of his employment that , on -promotton bo the position of UBS Site Supen,isor, he would be reporting to the UBS S uperinten dent and that the l\ilaintenance Foreman would be his subordinate. That, therefore, the Appellant violated his conditiohs of service when it transferred him to l<itwe and placed him u.bdf!'r the Mtuntcnnncc F'oreman. 3.2 1'he Respondent further claimed that the Appellan\ attempted to r.rans{er Jiim t.o Lonshi Mine in the Democratic Republic vf Congo where he was rt!quire.d to wurk ns- an Operator a.nd repoi•t to even more. Juaior offic<c:rs, ln his testimony, lh~ Rt.?sponctenL lold the learned tTiaj ,Judge that he requested for a formal lotter of tFcillsfer from O\,V 1, That he u1sisted on the leLter of transfer beeause thst was what ~,ould l1ave guided him on the na1 nre of the jul. J Llial It~ wu~ going to ue doing at ie. . Lonshi Mine l:lricl the cuuditiortt: of ~<:rvic:t' undt:r Which he was going to be working. Tiu·1t ln p3rlkuh1r. he wanted to know whether he was going to be entitled to responsibility allowance and other incentives, like out of station allowance-, 3.3 The Respondent further alleged that after he r aised I.ht: complaint on why he was being transferred to l,on$hi M.ine wii.1,out a, letter of transfer, DWl sent him to see l'vlr. ENSLJN, tht: Regional Manager who upon entering hls ('Mr. ENSLIN's) O!Ike, clli;lsed h im before he wou.lcl even say anything. That DWl then escorted !tltn to sec DW2. the Hu111an Resource Manager who told him tbat if he did not want to go on transfer be should resign. Tha_t "hu.ving observed that he was being frustrated ; he wrot~ a li:1ter dated 271h July, 2009 1 \Vherc he expressed his intention take early retiren1ent from cmp1oym(.:nt but lhi! Appellant rejectt:d his request. 3.4 The RC!-;IJOndenl averred that, st1bsequenUy, he b~kl u meeting with Mt. ENSLlN on 291.ti July, .2009 und • 1:1 nnmec:Hatclv a f~cr that meeting, OW 1 slapped hin1 with three disciplinary offenc es which le<l to bis dismissal. 3.5 According to the Resp ondent, afhc:r he was dismissed fr01n employment, he did not appeal against the dismissaJ becaus e he beltevect that justice. wua not going to be done considering the conduct of lht: AppellaoL. He added that he did not think }ust ice would b e done by DW2 on appeal when DW2 was part of t he disciplin a ry h earing panel that dismissed him, stating that he felt frustrated and mislrealed by the Appellant. 3.6 ln r esponse to tne charges agajn st h im ; the Responden t cxp}ajned !h1:1t he was ne.ver absen:t from ·work without permission on the stated dates. Tha t Crfl 2411, July. 2009, he got p i:rmission from his urunc,;d iate sup¢rvisor, DW l tlJ go t.o Nd ~,ta tt> renew hi s passp c1rt. Thal or1 th (! sa.tn l! clay he bro\.tgh t the travel docun1ent to D\A/2 for his :,ignature an<l -re tu rned It l o Ndola after DW2 h ad signed iL, Whh tegard to the charge of ins ubordinatinn 1 he stated that he did not rufu~i: to go to Lonshi but that h e simply requested his s upervisor to put the tr ansfe r in wTiting. On the allegation that he did not fc:>Bow the gricvn.nc;c nr-vcedqres, he told the C<1urt tha.t t,ie started b:s,· .raising bis g rievance with his imm ediatli: supervlsor1 foflowed by the Regional Manager and later. the Human Resources Manager, That it was only after be bnd seen these superiors thr~t he: proceeded to see the lvlanaging Director. 3,7 l'l1e Respondent l'utt h er contested th e decision to summariJy dismiss him on llie· ground U,at DW 1 and OW2 we!'<' inter ested parti~s .and. should no1 hu.ve been part or the- disciplinary panel. F'urther, that th1; dis"<.'.iplinary hea1\ing was h.eld on 11 11, August, 2009 l>ul t.hat his letter of dismissal wns dated 10•h August, 2009. According ~o him. this $t1owed that the dismissal letle1· m is prepared before he was even heard. ·raE CASE FOR 'THE . APPELLANT ·l-. 1 The Appel1<3nt challenged the Respondent's action by lilin_g a n1emoi:andum of app~Qiancc and defenc.e ,1nd t!ullinp; two witnesses, t\1at is, owl anrl nw~ • Jtl tJ ,2 The gist of the defence bv the Appellant was that the Respondent was at an times under the supervision of the UBS Superintendent (DWI}. DWl told the lower Court that when the Appellant had new business in Lonsru. it sent a Mr. CoUins SANGAMBO to work at their Lonshi Site. That after working at Lonshi Site for three months. Mr. SANGAMBO asked for a break to come back to Zambia and see his family. That DW1 called the Responden t s0 that they could make arrangements. for him to go and relieve Mr. SANGAMBO. That OWl explained to the Respondent what he wou.ld be doing at Lonshi and his out oi station allowance entitlemenl. According to OW 1, the Respondent refused to go to Lonshi . That. I.he following day the Respondent ctid not report for work and did not communi.cale the reason for his absence . 4.3 DW l took the matter to DW2 and Mt. ENSL1N, who also. tried to persuade the Respondent to accepl the transfer to Lonsbi Mine but the Respondenc maintained that he could not move. That the Respondent brought up the fact Jl2 that bi: could not Lravcl to Lonshi becaUS<" he had .no pl1$Spo r t. ·rhat . M.r. ENSLilN . however, fold him that the Appellant would pay for the processing of his passpon. Th.at Mr. ENSLfN also asked him Lo ~o to Appellant's accounts depanment and get tht: money to pay for the passport. DWI alleged that, during the Meeting .in DW2's effice, the Respendent walked out of Urie meeting be.fore discussions were concluded. 1 .4 It was OW l 's further testimony that later, he made arrangem1.:nts for the Respondent to again meet DW2, Mr. ENSLlN and DW I hin1self ancl that U,at m1.:eting was held i.n DW2's office. That at that m eeting, they resolved to give the Respondent one free shift so that he could hnve time lo consult his family on U1c transfor t o LonshL 'rhat, a ccurdlngly. rhe followin~ day the Respondct'll (.lid nc,,1 n :port tor work and DW l did not mark him absent. Howcvcr 1 after that day, tl1e Respondent was abse11t from W(),k for three days anrl whc·n askecl wh)• he hod nol reported for work for the lhree- days, he failed to give DW 1 I) proper C..'<planation. That for this reason DW 1 • made up his mind to charge the Respondenl with the subject offences, ~.5 DW2 explained tl1al he refused to allow the Respondent lo go on early r etirement because he did not qualify for ear,ly retjrement. That at the time the Respondent was less than forty -five yea.rs old . ·~.6 DW2 e,-..-plained the procedure which was followed b y the Appellant ,vhen an employee was charged with a disciplinary offence . He stated t.hat the 1-fuman Resource Department is not involved in charging an employee b~1l only receives a copy of the original charge from the charging section. 'Fhat the Human Re-solffces Department then cal.ls the charged employee to submi't a written statement in response to the charge, after which the Derartmenl arranges a disciplinary inquiry to be chaired b y a n independent person . He cxplaint!d tha t in the instant case. the Production Co ntroller. Mr. Joseph MWANZA, was assigned to chair tl1e disdplina.ry case . That Mr. MWANZA was in a diffe rent section fro m the on e the Resp ondent wa s working in. II. 7 DW2 told the l'uu1·1 l>dlJW that. OW l was present <lu1·ing t.he disciplinary hearing in his capacity as the Managen1ent RepresentatiV'c who chru'gecl the . Respondent. He also e~lai.ned that the function of Utt· Human Resources representalive during the d.lsc1pbnary hearing was to take minutes and to advise on the procedur-e. 'f'hat after the hearing. the decision is made by the ChaLrperson after giving the two sides an opportunity to explain their respective sides of the story. 4 .8 DW2 c?Xplained that tbe Respondent was charged with insubordination for l\;1.ving walked out of D\V2's office Lefore they could conclude the discussions. With regard to th..:: charge- of failt1re to follow established pn>cedure. DW2 told the trial Court that when an employee ls ctggi-ieved, h e or she is s~pposed to sta.rl. with the immediate supcrvtsor and that if n11r satisfied, the employee cpn ask for permission to go and see someone higher tban the imrnediate s upel'V,ll'lor 0 1 th~ gril!v:~rt<.:t! can be taken to the Human Resources Manager. Thal. however, in this ens<:, Lhl' Respondent went ·straight to JlS the Custorncr Service l'vlanagcr. "Mr . Rob MA r<OYf. DW2 1ntd the luw~r Cou1·t 1h 01 when the Respondent was d issatisfied with the tlecha(1n of his immediate supervisoi-. he· should have raised the issu e wlth d1e Regional 11anager. That it was only if he was not happy with the decision of the Regional Manager that he was entitled to go to the Customer Service Manager. 1 .9 ll was DW2's evidence that while at the Mufulira Site, the Respondent used to report to the UBS Superintendent .. That when ht! w as transfen·ed t-0 Kitwe it wa:s agre.ed thilt h e would be reporting to the Foreman. DW2 clarified Lh.:1l Lh e UBS S~peri.ntend ent was In Salary Grade 33; the Foreman was io Salary Grade 3'.2 aod the Respt1ndeut was i'n Salary Grade 30 . 1'hat. therefore, the Respondent was not reduced in status when he was asked to be reporting to the Foren1an beeaus1.: the Foreman had l'\ hi~her salary grade. 4. 10 DW2 ad.milled U1at the Appellant did not wri te a le tter of t.1-an s:fe.r for the Re spondent to move to Lons.hi Mfne - He , howcvet, explai ned that this was because t he proced'l1re • H6 requlte<l the. Responc:ld1t to ru-st agree ,vith tils ~upervisor. DWI. 011 whetl\er the Respondent would accept the transfer. That, thereafter, Human Reso\.lrccs Department would pu t down the transfer in writing. DW2. however, conceded in cross-examination that th¢ Respondent was entitled ~o a written crapsfer to enable hj.m know me conditions of service under which he would work .. '1 . 11 OW2 maintained that the Appellant picked the Production Controller to chair the panel bec~l,lse he was un inrlepencient person , It wus DW2's testimonv that the Clla.irperson of the disciplinary inquiry had discretion. after checking the accused officer's file 1 to decide the approp,iate sanction. 1'hat in this case, the Chairperson fpu11d Lhat Lht:: Respondf!ril hat! bet:n previously beert pi.wished fol· other disciplinary offences. !l. 12 The Appellant, accord ingly, averred that the Respondent tlid not suffeJ• any damage and rhat h t! was nr.>l eath.l~d to any of the reliefs he claimed. 5 JUDGMENT OF THE LOWER COURT J17 .;i. I On the bE1.:sis of the c;vidc:nc._; and submissions before- llcr the lean~ed trial ,Juclg~ made a number of findings and :holdings. The CtlUrt fountl that the terrnihation of the Responde-oi's eruploy1neut was connected with his refusal to be transferred to Lonsh'i Mine; in the DemocFatic Republic of Congo. According to the Judge 1 a letter ot' transfei- was important because i.t would have speH out clearly the conditions of service u11.der which the transfer ,vas t0 be effected. Tout th.e refusal by DWl to give the Respondent l:he letter of 1.ransfe.r wa.s unfair and unreasonable, ~.2 AecordingJy, the lea.med trial Judge bC'ld that the Respondent was justified ip (:lcmandi~1g for the letter. The learned trial Judge held that the termination of the Respondent's err1 ploytneut based on the aJiegccl refusal of the transfer 10 Lonshi Mine was ·wningfi.11 a nd/unlawf11l , -as it was done in breach of Article 5.2 of the Staff CoadiUous of Employment. t'm: Non •Contraotua1 Employees. This Artidt! supulates the conditions applicable;; wbc;n an employee is assigned ,to work away Jll! from bl:. hOrne ba!'\e. Relying ort 1 ht: \:ases o1 RAINWARD MUBANGA V. ZAMBIA TANZ. ANlA ROAD SERVICES LIMlTED 1 and BRIDGET MUTWALE V. PROFESSIONAL SER'\lICES LIMITEJ)ll, the le.irned trial Judge held that tb~ lcrmioation of the Respondent's employment was ineffoctuE1l wrongful and unlawf"ltl. =i.3 The Court also found tl1at th~ panel, ,11hich hti:ard the disciplinary charges against Lhc Respondent, was unfairly constituted, because DW 1, who was the charging officer. and DW2, who made the allegation of insuborc.llnation agains1 tlte Respondent., were both on the case h earing panel. 'The Courl t:>:pressed lhe strong view that the presence of DW1 and DW2 on the (JaJ1el ~ . ..,.~s intimidating to the Respondent and had the possibility of influencing the decision of IJ,~ Chnirperson even if the Chairperson had exclus1ve po,vers to tnakc tht: cll!cision of summary dismissal. 'T'bat therefore, the presence uf DWI and DW2 on the.: panel was a violation ol the rulc:s of r11:1 n.1rol ju~tice. Jt9 5.4 ConsequiuH.ly., the:: Cou11 eon1.:h1dcd tha1 rhc disciplinary panc1 1 oot having been properly constitutt:d, did not :hnv~ valid disciplinary powers to hear the charges leveled against the· Respondent. That for this reason. the Respondent was not accorded a fair hearing and the decision of the panel was wrongful. unlawful and void ab itutio. Further that the· person who should have dismissed the Respondent was the Head of Department and not the Productit>n Controller. 5,5 With rcgiu·d to the Respondent's claim for da.mag~-s fm· breach of conLract, the Court held that 1,.here was f!O breach of con o·act to entitle the Respondent t o clarnages_ That, in fact the· Respondent could not be entitled to damages for breach of contract because he was not :sa ving under a contract but on pension-able terms. The Court also held that the- Respondent was not er'.tllUed to the payment of any arrears because the- AppeUarit had pal(! him nH o~t~landiJ1g payments. q.b On tlH! Respondent's claim of entitlement to retirement, the lower Court held 'that the Respondent was not no e11 Uiltcl Lo ea.rly tctir~tne,1L bt!e~ui;e he had not rtuci1ed the age of 50, wbicb was provided for in hls conditions of service. :i.1 The learned trittl Judge went 0 11 tt) bold that the Respon dent v.ias en~iUed to reinstatemenl because, according to her, the case hearing panel did not have valid powers to hear the Respondent's case. That, therefore. its fi.n,djngs against the Responoent were void ab lnltio ren dering lhe dismissal of the Responden t from employment a nullity. The Court. consequently, ordered that the Responden t should be reinstated to the position he held with the Appellant on the date at his dismissal. Fu1°ther, that the Respondent should be paid his salary urrears and arrears of any allowances that he was etttitled to, ftonl U1t date of his dismissal 1.,1p to lhl! <uite of re.instatcm!!nt1 with interest nt lhe prevailing Bank of Zambia lending rate. 6 .0 GROUNDS OF APPEAL Rt:sponderu.'s t:::-mploymeot was wrongfl.d and unlawful. tn support of this prayc-r, Counsel r1;ferred us to the ct1.sc of THE ATTORNEY-GENERAL V. MARCUS KAMPUMBA ACHl!JME3 , wher e we $aid that- "The -appeal court will not revel"se findings of fact made by a trial judge unless it is satisfied that the findings in question wer~ either perverse o:t made in the absence of any relevant evidence or upon a m isapprehension of the facts or that they were findings which, on a proper view of the evidence, no trial court actin,g conect)y can reasonably make." 7 ~ CoW1sel contended that U1e lowe:r CotU't e rred wbcn rt det1Jt with the reason for Respondent's rlismissal instead of !ook1r1g, nt hnw the Respondent was dismissed. According to Counsel. the question shoulcl not h ave been \VHY but HOW the dismissal was effected. 7 ~, Counsel ·su1'mittcd that the evidence on record shows he "ras no1 hFtppy wil.h the coodirions and iocc:otivcs offered t c, h.irn arid n1H hc::eau.se there was no letter of tl':l11~fe1• l'n hifl view. ~ht issue of there being no Jetter nf u·ansfer was an -ilfterthought. ln suppo.r-t of I.his submissiQn, Cow1scl referred us i.1 Lht: l<espo11c.len1'e • crxcul!-'a1or.r su1tcn1c:ot un page 172 of c]1c rc.;.cord uf ap peal where , the Respondent WTOlC "Tnsubordination , again I refuse the case because 1 didn't refuse to go to Lonshi but 1 wasn't happy with t he conditions and incentives!' Accurding t. O Counsd. the m1ly point a t which the Respondent raised the issue of the lettec of transfer was in his pleadings . 7.4 Counsel also contended that the Appellant e»'Plruncd to the Respondent the t¢rms and conditions under which tbe Rei,pond~nt was going to work at 1.,onshi Mine. Tliat, in this respect. lh~ t\ppcllmnt complied wi~h the requiremc:n ts of Section 5 1 of the EMPLOYMENT ACT CHAPTER 268 OF LAWS OF ZAMBIA (hereinafter referred to us "the Act''), which stipulates that- "Every employer shall, before an. eniployee commences e mployment or when changes i n the nature of such em ployment ta.ke place, cau s e to be e.xplaioed to su ch e mployee the rate of wages and conditions relating to suc h paymen t ." 7.5 With rcgai'<l to rhe 001npositlon of U1e diflci pli11t:1ry hc?arit1g panel , Counsel sub1nitttd that DW 1 ,,,sis prt:sent at the hewing tn giv~ ma11agcrncnt's side of the st. O t ,V because he was t.he one who !tad charged the Respondent, That DW2 attended U1e disciplinary heari11g to 1·,ccord the minutes. Counsel distinguished the case of SHILJ.,ING BOB ZINKA V . AT'l'ORNEY GENERAL4 from the instant case. According to Counsel. in this case DW 1 and DW2 were not Judges m their own cause unlike t1"1e position ir, lhe Sl{U,LING BOB ZlNK. A,4 case. 7 .6 Counsel went on lo -submit thal the Respondent's Head of Depar~1nenl, Jvlr. Michael ENSUN , could not have chaired the disciplinary hearing because he had already been consulted on the Respondent's grievances. Thal it was important to get w, independent person tu ensure fairness. 'i,7 Counsel submitted that the power 0fthe Cocirt, in a case where an t:rnployee is dls1nissed afle, a disciplinary hearing, is explained in the case o[ THE ATTORNEY GENERAL V. RICHARD JACKSON PHIRl5 • We have referred tP this case in detaJl later in this judgment. 7 .8 \. Vith regard to the actual offences alleged to have been coro.miltt!d by the Respondent, Counsel faulted lhe lower IZS Cou1·t for having. dtlcline<l In C(Jn51Jer whether the Rcspon<lent was guilty t)f any of tJ1e said offence s. On the oITenol·· of absenteeism, Counsel :;ubrnjttec1 that no one w,ls allowed to get permission on phone. Acc0rding to Counsel, the Respondent breached this requirement a;1d admitted that he did no r obtain \~Titten permission to be absent from work on the material dates. Counsel pointed out that dnriog re-examination. the Respondent testified fhRt he asked for pcnnission from h'is supervisor on lhe phone because most of the ti.ml:! he 11sed Lo comrrn.m.lcate with his Supenri.sor by phone. 'i .9 With regard to the charge of insubordination, Counsel submitted thiH 1)1e1·e was evjqence be:fore the Jo,ver Court to shr;w that the Respondent walked out of the Human Resources Mana.ger•s office during a meeting aimed at addressing the concern.s the Respondent had raised. 7. l O Corning to U1c alleged failure to comply with l'sta.biishcd procc.:durcs/foih,1r~ to carry out lawful 'instructions. Ctiunsel s"Ubrnitted that the lower Court shou1d have considered the finding nf gu ilt rnc1de bv the disciplinary a~)pellate bodies ft'Om a decision of u diacipllnary tribunal. 7 , L l Counsel went on to submit that the· Chairperson found. that t he l~esponclr;nt h t\d pr(."Viously been punished !'or a n\lmber of disciplinary offenoe..s. 'J.'ha1., therefore, the Chairperson was justilied when he imposed the peuulj_y of dlsmissal on tl1e Respondent. ln support of }ni< submissicius, Counsel referred LIS l o the case of BOSTON DEEP FISHING CO. V. ANSELL6 , where tl was helcl that- "Where the employee is guilty of Sllfficient misconduct in his capacity as a.n e1:11ployee he may be dismissed t,ummarily without notice a.nd before the expi'l'atio n ot a fixed period of employment." 7 . 1 ~ t:1,unse1 explained $Bl the Re sponpent l')ad the rjght Ill appeal ro Mnnagement llhrough' the Humat'l Resources Manager and not to appeal 'to' 1.bi; Hutnan Rt8uLl.n;es M~nagcr a s cl aimed by the Responrient , Thal th ~ Respondent. declined to exercise this rlg ht. fro tl\lgmcul the foregoing submissions. C 0\1\18'el cited the uast- c, t NATIONAL LIMITED v. PIDLJP 11.1 "Where an employee b as committed an offence foT wblch he- c an be dismissed, no inj u stice· arises for failure t o com. Ply with the procedure stipulated in the contract and .such an employee- bas no claim on that ground for WTQJlgfuJ dismissa,J o r a declaratiQ. J1 that the dismissal is 11 nullity, » f.13 Cou.nsc. J wcu1 on tv 1·efl'!r u~ tl'J, arnt1ng othe1· cases, the case of AGHOLOR V. CHEESEBROUGH PONDS (ZAMBIA) LIMITED'", where it was held that- " .... It is tnte law that a m·aster can terminl,\te a cpntract of e.mployment at a ny time, even with immediate effe ct and for any reason. the pTO¥isions of the contract tben he is in b{each thereof and is liable in damages for breach of contract. tr he t e rminates outside Where a master "dismisses'' a servant he terminates C'he contract summadly without 11.ny notice, on the grounds of miscm1duct, ncgligenee or wcompetence. If s~ch gyounds are justified the servant forfeits the right to a ny notice whatsoever and a number of other benefits . ... " 1 , I 'I Coonscl relied on the AGB0LOR8 case to a dvance tl1e v1e\v lhat having been Jound guilty o1 the o[iences leveled ag~{nst. him, the 'Responcl~nt h,rfeited the right 1() nny notice F'urlhcr, that the Respondent forfeitc<l a nutn!Jcr tif u thcr bt:!11cflls inciuqing the righl t.o bl! con~,d~rccl 10 have bec:n i·cinstated and i1eci red . 7 15 Conl.lng rn tbi: second grc:lur1d uf o1pp1.wl, Coun!'lel submitted tbul t.be lowe1 Cow"i. misdtrecti;d it. Self wben it <ir,de red I hn I the Rcspoodc:11t be reinstated and pnJd tZ8 an·c:ors or salrirics anti t~llowonccs wlien fl1e:: l~•:sponi-l1,nl. 1r. di~miss1,,l ,,,.,,s ncil her wrongt,1l nor llnlaw'ful CounseJ Wen I i)n to a rgue 1 hat th~ remedy of reu1ata1e1nt.<n1 1s only a\1•ardcd u1 special ca,cumlltances. To rcit1lorce his l\rgu1nen1, he r<efcrred ll~ lo. /nre,- ulia. the RAiNWARD MUBA.l'fGA 1 case. Where this Court said the following: .. In the case or Francis v Municipal Cotlncillors or Kuala Lumpur (21, a Privy Council case, it was held as follows: 1,. ,. When there has been a purported termination of a contract of service a declaration to the effect t hat the co n tract of service ·SU11 subsists will rarely be made. Tbis Is a co·nsequence of the general prfnclple of law that tbe c<>urts will not grant specific p e rfonnance of contracts of service .. Special cucum sta.nces will be required before su.ch. a dedaration is made and its making will normally be in the discretion of the court ... .' 1D that cnse the president of t:he country concerned bad powet to dismiss an employee Of the local coun cil; however, t}1e employee was dismlssed wrongfully by the use of tlie WTong proceilure .. It was held that d~spit¢ th!!' fact that the dismissal was quite improper there ·was no reason to grant the applicant a declaTation that be was entitle d to reinstatement." 7 16 In thL" altt: ruative. CoUJlsei couteut!t!tl lli..at sho~1ld U1.l!> Cou11 find thal 1hc: lumnn,1l1on o l thr, Respondent's • no special cifturnsLaoces proved to t•nlitl~· U1e Respondent to rcinslntcmcnt 7 .17 Counsel maintained lb.at t he Respondent was not entitled to salary and aJlowance arrears because lhe Resportde-nt di.d not adduce any evidence tu show that he had suffered damage to tl1e extent of his. former full salary. To butttess these arguments. Counsel referred ·us to the case of ZAMBIA AIRWAYS CORPORATION LIMITED V. GERSHOM B. B. MUBANGA9 , where we h.eld: "As to the order that the respondent should be- paid hls· full saJary and arrears from the date of his purported dis.missal, we note tilat no evidence was called to the effec t that the re11pondent bad actually suife.ied damages to the extent of his former full salary. It was the duty of the re11pondent to mitigate his loss and we have- heard from his counsel, though not as eviden.c-e, that the respondc:nt hlls in fact been enga.ged otherwise si~e the di.sm.issal. In the absence o_f any evidence to enable any court to ca,l cu)ate the loss es, if IUlY, which }lave ·a.ccr:11ed to the respondent the award in thts respect was not justified/' "', lo'.i Counsel furthet submit red that sho1. Hd 1hi$ Court l1r1d 1 hal Lhe R!"sponcte;n t's d rsmissal was wrongful and unlawful, we should hold that it was unrealistic fCJT 1he lower Court to order 1hal U1e Respondent be paid salary arrears and arrears of ;-,lhiwances froro U1c date of hi1:1 • )JO ctisrntssal lo 1-.bt' date <ll'ltis reinstatement. Thttt lhe Court should instead order a fai r recompenee if it fu1ds that the Respondent was wrongfully dismissed. For these submissiotis, Counsel again relied on ~hr' c:use of GERSHOM B . B . MUBANGA9 7 .19 lt1 conclusion , Counsel urg~d \. Is ~o allow the appeal w1Ui costs. 8 .0 ARGUMENTS ON BEHALF OF THE RESPONDENT 8. l 1n response; Counsel for the Respondent, Mr. CHILUFYA filed wiitten heads (:)f argument. On the first ground of appeai, Counsel C<)ntendetl that the learned trial Judge wns on firm ground when s he held that the termination c,f tbe Respondent's employmC!nt was \.\!n1ngrul a.nd unlawful. Counsel ar-gued that the Court Tightly found as a foct, thnt th.c Respondent's employnicnt was terrn inated b,;cause he complained abotn being tr.'insferred to Luu11ibi Mine wlthout a written kttcr of tran$for. According to Coun$el, it is co1nmon practic~ in Zambia that whcncv~r an employee i.s transferred from one working place to anoth er, Managen1-ent ffi1.\St communicate th~ tJ·ansfer J ll t hr1;:n1gh a letter n t transfer . That; iT1 f:)ct, this was the practice 1n the;: Appellant Company. To s1..\pplen1ent his argumencs. Counsel cited. arnong others, the case of RAll'i\VARD MUBAN'GA \ which we· have already r eferred to above. 8.2 Counsel argued that the Appellant did n ot a.dhere to 1ts Staff Condition:; of Employment for Nou-Contracn.ial Employees which, according to Counsel, contained provisions rel~ting both to temporru and pe rmanent re location of an employee to a;1other workplace either within or 01-usi rl'e. 7,ambi::t . Coun~el r,a r'Llcul:uly higt,li~ ht ~d Article 5.2 of tbt: :;aid Conditions which p rovided (or lhe conditions of service that should apply to a n employee ,..,ho is required to work permanently away from home and cann ot reasonably atLct1d work from his 11ormal place of residenee_ 8.3 Counsel stressed that based on tht: above, 1b.e lowe1' Courl properly directed it.self wh en it bdd Uiai the te rmina tion or the Respondent's amploymc.:11t v.rns i.vi:-on gful a nd unluwthl Hl 8.4 Co1>-1nscl further contended thl\t lhe Appru.lant dld aot cornpJy w,lh Section 51 of Lhe ACT as ,t <lid nor explain to the RespMdetH Lhe conditions of service wider• which h e was going, to work at Lonshi Mine. 8.5 Counsel submitted further that the case hearing pane"! was unfair1y constituted because DWI and DW2 should not have Leen part of the panel as they had U1eir own iuteresl to serve. That the Appcl1ant, therefore, breached the rules of natural justice when it allowed DW 1 and DW2 to sit in ti1e disciplinary hear.ing 'Co emphasize Lhese sul;imissions. Counsel cited the case of SHILLING BOB . ZIN,KA4 for the proposition that a persori shoulq J1ot be a judge in that person's own cause .. 8 ,6 It ,vt1s Counsel's fi1rthc-r subrnission that 1:he Respondent was not absent from duty as alleg1;:d by 1.ht: Apptillant bi:cau se un the do.u~s 1n question he obtained pe1missi<>n from his immediate superv.isor, DW 1, 8 . 7 Counsel concluded by praying that thl.s Court should uphold Lhejudgtllenl of the low.er Cm.u-L 9 .0 DECISION OF THIS COURT • Y. l We have carefully ron stcit!.red I he cv!(te 11ce on rccor<l. the Judgmen1 r,f the tower Court and the submissions of Counsel. The contention by the Appellant under this ground 1s that it terminated the Respond.e:nL's employment in accordance ,vith his condition:;; of employment. We note, however, thal while the s.taff conditions or employment for non contro.c.:Lu11l employees and the schedule of offences were availed, the grievance code whiuh outlines the gricvance procedure ,vas not. Be thnl as it may, the broad iss1.1e for our determination in tJ1e first ground of appeal is 'whether the lower Court on the evidence that was before it, -properly diTected itself when it held that the tettmination of t'he Re spondent's employment was wrongful and u nlawful' , 9.'2 Cuunsd i()r Ll1e AppcJlant h as submitted tha t , contrary to the Ci.ndings of the lower court, there is evidence on recnrd to show that the clisciplinsry c harges leveled ngainst the Rcspondtnl Wt:"1ie proved bcfort! the disciplinary l)ancl. ,\ ccordi°'g to Counsel. the lower Court ::.hould nnt h ave foc;ttseti nn I ht! l:wl t hot the R(~sponelt~t ·was no1 given u letter of t.ransler lo Lonsltl Mini.' but s houl<i have coneentraled on hOW the lermtoatio11 r,f the Respondent's ernploynien1 was effected , 9 .3 Counsel for the Respondent on the other hand contended that the lo,vcr Court was on firm ground ,vh<:n i i held tliEl.t the te-nninution of the Responcienl's ern~lo,vm nt wni; wrongful .tc\nd unlawful. 1).4 rn the tlf t en quoted ca$e of A'.l'TORNEY G~tfEAAL v . . RICHARD JACKSON J>l!IRl1 \ we said- "In a case sucb as t ills, the couzt ought to bave regiud only to the q uestion Whether there was poweJ" to intervene, that is lo say, the questio n whether the Pub1ic Commission h ad valid disciplinary powers a nd, if s o, whether such powers were validly ex.ercised .. ... As Mr. Phiri:. pointed out, ther e was no dispute t.hat the Public Service Commlssion had juris diction and power over the d.iaciplinaty proceedings and, impose t:Ae penalty of dl-sc harge. The only issue which remafns to be considered is whether, 1n exercising the powe r whio.h they undoubtedly bave, sucb powers were 11ali41Y exercise d, t..hey can .... We agree tbat onae the correct procedures have been followed, Use only qqcstion which can arise for the consideration of the court, based on the f.icts of the· c-a.se, would be w hethe r fact tacts established to support the disciplinary measures since it is obvious that any exercise.-of powers will be regarded as bad If there ls no substratum of fact to support the same, Q.uite c.learly, if theTe is n o evidence to sustain charges leveled in disciplinary proceedings, injustice would be there we re a.n • visited upon the party ci o11.cerne~ If the oou.rt could not t hen J"eview the validity of the exercise of s uch powe rs simply because the disciplinary authority went through correct and th e procedures." proper motions followed the Y.5 It is cleat' from the casi: of RICHARD JACKSON Pmrus U1at. U1urc are two elements 1bat l"t\U~l bt: proved bc(orc a decision of a disciplinary comm1uee can be considered cu have been valic11y made. These are:- (I) wl1ether the disciplinat)' pw1ul had valid disciplinary powers; ru,cl (2) whether the said powers were validJy exercised, ~.6 [n the insl'aJ1l case, fl1c Respondent impugned th e r.om position of lht! hcl'lsing panel. As rlllucted 10 abov(: 1 the applicable g1•ievance code was 1101 :'lvailed to assist the· Court ascertaln the quoruu'I of the cast hearing P!IDCI. But it would appear that in this case. il WRS e·nmposecl of l'hno:e perso11s. The Chairperson , Mr. JosC'ph MW/\NZA . who was the Production Con troller. IJ\V t, who chargpd the Respondent Hnd OW2, lhc Hllmun l<esource Manager. In order to resolve the first ground of appci\l, we must fn-st consider 'Whether fht·rt: w,1s anything irregular wh'l 1 the ~qmposirn,n ol lht! JlL 6 . 1 Tbc Appcllaot hss now appealed In this Co11rl against the dc:tt:rminntion of the lower Coan advancing two grounds ol appeal, namely, lhal- 1. the Court below erred 'both in law .i.nd fn fact wbco it that the· termination of the Re spondent 's l\eld e mployment was wrongful and u:olawflll when the termination was in accordance witb his o_onditions of ernployment; and 2 . the Court below erred both in law and in fact when it ordered that the Respondent be reinstated and pa.id salary arrears and arrears of an.y allowaoi:es from date of dismissal to date of reinstatement when t he Responde nt's dismissal was not w rongful or unlawful. 6 .2 /\ 1 th1a: hearing of the appeal on 4t1, Sl'.!ptember, 2018 1 the l\ppe11ant dfct nof appear. There ti.re, however, heads oJ w-gurnent w"hich were ffied nn its 'behal f on 30111 December, 2015. The (e&rned Cot1nsel for the r<espondent appeared and relied entln!ly on the heads c)f argument filed on behalf of the Respondent on 2l ' J. Ft'b,u 11ry, 2017 , 7 . O ARGUMENTS ON BEHALF. OF THE APPELLANT 7. l Tbe main thrust of Counsel's submissions in s upp·ort ot tht: fn-:;1 grn\lnd nf oppcal is tha-1 this Court should l't:VtrSt-: I.he findings ol° fact upon which Lhe lower (.,":otirl based its holding, that the- teFminatron of I h t: J36 disciplinary p...1nd which heat·i.i rh~ Respondent's case before we can deter,11ine whether the said pa.ne1 vaUdly exercised its disciplinary powers. <J_7 The learned t.rial Judge found that the case· hearing, pant:l was untairty conslir.uted because DW I , who was the charging officer and DW2. who made the allegatiou of insubordination a,gainsl the ~ espondent, were on U1e panel. The learned trial Judge held the strong view 1..hat the p resence of DW 1 a11d OW2 on t11e panel was inumidating 1.0 the Respondent and llad tJ~e possibility or infTueocing the decision of the Chairperson, even if tht: Chairperson bad exclu sive powers t o render the rmal dec1s1on. She held that th e panel was not properfy constituted and that it had no valid disciplinary powers. !>.8 ~Ve have judlciously e.xe.mlned the evulence on the record ot appeal in relation to the composition of the disciplinary heari1.1g panel. Counsel for the Appellant has maintaiaed th,11 ihe disciplinary hearing panel was fnirly constirutcd , That, in fact, during cross-exarnin-ation, the Respondent aclmiltccl thal he did not challenge the composition of the n1 panel. Counsel for the Respo11dent. on U1c other hand, has submitted thaL tl1e Respondent was not accordt?d a fair uearing. According to him, DWI and DW2 should oot have been part of the case· hearing pan.el because they had interests of their o,vn to ser\le. 9.9. lt is not in dispute that DWI was the one \\'ho charged the Respohdent with th e subject disciplinary offences. It is also not in dispute that il was DW2 who made the allegation of insubordination against the Respondent on the basis that the Respondent walked out of bis office in the middle of a m eeting. The question, I here fore, is whether Jt was proper and fair for DW I a nd DW2 to be parl of the disciplinary h earing panel in view of the rcspccr.lve roles that they played in the preferring of disciplinary charges against the Respondert\.- ':1. 10. !t has been sprr1ted.ly argued , on beha1J of the Appe!Jant, that DWI and DW2 were each performing a specific role to assist 1J)e Choirpcrson come up with a decision, It. is 3J>par'ent however, that this was a panel consisting of three persons and it would not be farfetchecl to con dude • that they had occasion to discuss the matter on thuir own In tJ1e absence of the RespondenL. [)Wl and DW2 had adverse interests to the Respondent and they could not be 0-eutral members of the panel , At best, they sh.ottld have just been witncsi.es before the- hcaTing panel to prosecute the case for the Appellant. Their presence tainted the Qeutr.a,lity of the paneL 1.1.1 1. The importance of natural justice in cmploycC" disciplina1·y hearings cannot. be over-emph1:1sisec~ An employee must be subjected to fa.fr proct:sse::.. We find that tl'11.1re was, in thi's case, a lla,gnwt violation of !he nlles of natural justice by th e Appellan t, DW 1 and DW2 clearly had their own interests to serve because they are the ones that raised the all~gations against the Respondtnt. There was an obligatio11. on the psst of the A). JpellanJ, a~ e rnplo_yc.r tu ensure that the persons conducting U1e disciplinary hearing were objective and impar1-io1. •J. 12 In the l.rish case of AISTHORPE V, MARX ClnLDCA:RE DIRECT LTD 10 , an employee was dismissed from her J39 position ait a child cru·~ worker, following a11egation.s thnI sh~ had hit a child. The employee appealed against the decision and the appeal wns beard by the owner of tJ,e Child Care [nstitution, ,vho upheld the c. Usn1issal , On appeal Lo the Employment Appeals Tribunal, the Tribunal held that the dismissal was unfair because the s1.m1e parties were involved ~t the investigation stage, qisciplinary stage and appeal SlaJ!.e. According to the Tribunal, the employer had breached the principle of 11err10 judex in causo suo, that is, no man n1ay be a judge l11 his own cause. ~- 13 Taking a leaf from \he AISTHORPE ' 0 case. we holtl that the Appdlant. io the instant case. breached the principli.: of nem" iud<JX in causa sua, since DW l and DV12 were both involved in the leveling of disciplinary charges, agamsl the Respondent. 'The claim by the Appellant tJ1at DW 1 and DW2 did not parti<;ipate in makfng the decision to disn1iss the Respondent is untenable because it is «Jlcar from the evidence on record that I.be lwo played a rnajor role in the decision t.o dismi:;s the Respondent. vVe. • act:ordi ngly , agree w·ith U1~ lll\vt!l" C:(1ui-1 ·~ lit1clJc1g of fact that the case heruiit1g pauul was wlfa.itly conslituted. 9 , 14 ln addition lo the above, we ha vc looked at (he letter of dtsm1ss,1l, Evident ly, the o ffences for which the ,l\ppellant p~rrported lo dismiss the Respondent wen; not d ismissib le oifences for a firs1 offender. This is clear from the Appellant's Sch edul~ (i f Offences/ Sanctic. Jns. Fqr the offen ce of absenteeism of more than nvo days but not exceeding ten days, .an employee could on l.y b ~ discharged on u third breach . Similarly, for th ~ offence uf insubordination, an employee could only be dismissed on a third br each, while for U1c offence of failure 10 fo llow disciplinary p roccd\.1rcs/ failure to fo llo\.v- i;sta bli:;htd grievance procedure, an employee could only be dismissed on second breach. In the instant. case·, the le u er of disrn.tsi-:al d tl/$ tll>I st~te Ll1.1t th ~ l<t!spondt!nt was no t a first u.ffendur. The 1-elevant portion of rhe le ttc-1 of s nn1mary dismissal 1 t·ad as foUows: "The (31 tl!,ree above mentfoned charges are very serious offences, whicb can.not be condoned by AEL Zambia PLC m-anage.ment. It was proved during the case h earing tha.t you are ;uilty of t he charges. MJ raised against you and lhnt you are setting a very bad example as a s upervisoT by (ajlure to carry out lawful instl'uction from your immediate supervisor (Obs Supetintertdent) and frc;,m your depart~ent Manager . You also did the b'am e to the comp·any Human Resources Mana,ger where you even walked out of the office and only returned the following day with an application letter of retirement. Therefore, you have been slimmatlly dismissed from AEL- Zambia PLC e m ployment with im.mediate effect." q , l5 h is evident from th!! above portion of the- letter of cHsrn issal !hat the dismissal was basffd pLtrely on t.he purported seriousness of Lhe offence~. tt was not bns~d oa I.be tact lhal 1l1c Respondent wu(> a sut)::;equi:nr o ffen der as claimed by Counsel fo1 tlli.:A(lpell&. JL \l, I 6 fl'urthermoa·. an impress\On has bet·n CTl'ated that the decision to dismiss the Re!lponden t lrom l!mployment men· formality, This cru:1 be deduced from the facL that lu11er of dismissal was written ,t cl!\,Y bel'ore- clisciplinarv hearing wus conducted . It vvas written on Lbc the I 0 11'\ A1..1g11sr 1 2009 nnd refers to a niscipl.inan' heru·ir,g whic;h was Ht:kl OT1 11111 Augusl, 2009 . Then: fa 1·hcn:fore c-rcden<'ti. In tht: Responden t 's s(;ilemcnt thrit he wHs J<U tifsUlisseJ before lit: was l1card Thu le r tc:1 of 1.:U :rlllJ:ssal ckarly sbt>ws that lh1.: Appe!Janl made we ucdsiou tn dismiss the Respondent befor~ it mrcn afforded hi.m nn opport.uni~ to be heard , ~. I 7 Cn view n f th~ above, we hold that the Respond~nl Wi\S not afforded a fair hearing. V./e are alive to ou r decision in the· case of ZAMBIA NATIONAL PROVIDENT FUND V, YEKWENIKA MBINIYa CIURWAll_ where we ;;aid thnt- "Where it is not In dispute that an employee has committed an oJfeoce for wbicb the a,ppropriate punishment is dismissal, bu t the employer dismisses him without following the procedure prior to the dismissal laid down io a contract of service, n o lnj u-sti.ce tS' done to the employee by such £11-ilure to (oJJow the procedure and he bas no claim on that ground either for wrongful dismissal or for a declaration.that the dismissal was a nullity/' lf, 18 That deciswn in the YEKWENTKA MBJNIYA CHJRWAlJ case fs still good law. However', Lhe· f:.icts of that case are di$lingujt,ht1ble from the fa<:l~ of the- pn·scnl case rn the cn~t~ In c.:t1s·u , 1bur~ wn~ .i vinlatio11 of the rul("s of t1t'ltl.:\n1l justice w'Jrtich vlt.i.i1cd the decision of the pru,e,1. l-'1-trthrtr, the /\ppcOE1nl drafted Ult: lette1· of dismissal 111 ::idvo,11:t! Lberefc>re rmidtlring the dilidpltnury heaving to bt! :l formality. 9, 19 Even assurning that the discipJinary hearing panel was properly constituted, we stil1 hold that the Respondent was wrongfully dismissed. Our assessmeni, of the evidence on r ecord and the findings of fact by the lower Cow·t .establishes that the Respondent was willing to go on transfer to Lonsru Mine- 'l'his is particularly evident from the fact that he took p ositive steps to p repare himself to move to Lonshi. [n particul8.1, the Respondent toGk steps to renew ll.is travel tlocumont and made attempts to r enew his driver's license which he was l"c?Cfllir·ed fQ use in his new position at Lonshi Mine, ff he had indeed refused to go on trru1i;fer, as submitted by Counsel for (he Appellan t, he would no! h ave made U,cse preparatory arrangements. In h1s testi m ony before the )o\ver Coun , the Respondent insisted that he was I)l'epared It) go to Lonshi hut 1'h~11 he firsl wanted to get a loller of lran.st'er so t11at hf' CQ1lkf l<nc.,w UH: nature r,f lhc., • • )44 work he was gotng ro be doing at Lonshl and the conditions of service he was going to be serving under. 9.20 Accordingly, we agree wirh the finding of fac1. by Lhe lower Court. that th e impediment to the Responclefit's t.ran!'lfer was the refusal by the Appellant to foru1ally write to him a letter of transfer, \Ve have found it difficult Lo appreciate why the Appellant resolutely resjsted to write a let ter of transfer for the Respondent despit e his persistent demands i.n th at respect. In our view. the Respondent was entitled to have his new conditions of service spelt out in a formal letter especially that he was being asked to 1nove lo a foreign coun try. 9.21 We ~ee with Counsel for the Respondent. thaL all the misunderstandings that cul:minateel into the charging and dismissal of the Respondent emanated from the unyielding refusal by the Appellant give the Respondent the letter of rransfer. The record of appeal shows that the Respondenl unsuccessfully macle every effort to raise his grievances wil h DWI , Mr, ENSLIN. D\,V2 and the Acting Managing Diret\or. In fal'l, the L J45 L<v!dancc on r ecord establishes tliat whctL the RespondC'nl insisted on the 1ctlcr of transfer in the; meeting he had with DWI , Mr, ENSLTN and DW2, DW2 told him to resign tf he did not ,vanl lo tal~e up the transfer. Section 51 of the ACT which we have reproduced above, oblige::;; an employe-r1 before an employee commences employment or ,vhen there are: changes in the nature of the employment. to cause to be explained to the employee the rate of wages and other conditions of.service. \s).22 \ViU, rega.l'd to the chru,gcs themselves, apart from the fact that they clearly arose· from rhc Respondent's insistence on being given a Wl'tncn letter of transfer. we are of the view that there was no substratun1 of facts to Justify the charges. Firstly, with regard to the three days t11at the Respondent was alleged to have been Hl,senl I n11n work, an analysis ot the evi'dence on record establishes tbaL he was granted permission to be away on those days. He was alloVJ!!d to go nn<l rt: n t!W bis passport and driver's. license· and lacer 10 pick L1p t11e u-avel document fro1n Ndola after iL had be~n issued. One of t.b1.: • J4£i three days which DW l alleged lhe Respondent \VTI1; absent from work was the 27'~ July, 2009, Howi;:ver, in cross-e."<.8. Illination, OW I conceded that 27111 July, 2009 was the day the Respondeot was given peJ.:mission to go and process his travel document... Further, DWI did not dispute the fact that U1e Respondent was later given another day to go and cnUected U1e i.ravel document. when it was ready, 9.23 Tbe charge of insubordination was based on the [act that tl1e Respondent walked out of the meeting with the DW2 i11 the presericc of Mr. &NSI. IN . As we have already statecl. clsewhe'I'<: in this· jlldgmenr.., the RespoAdent walked oul of the meeting after DW2 refused r.o address his grievance relating to the letter of transfer but instead challenged hi.rr\ to resign. Clearly, tbe Respondent was not treated properly and, to th.ii,: extent, we agree with the ldw<~l' CouTt,s fin.ding of fact U1at the Respondent felt frustrated b_y Ilic: manner ln which h e was b eing treated by 1ne1nbers of the Appellant's managemi:nt. I • J47 9.24 We do not, therefore , think that it was fair fur the Appellant to have grounded the Respondent's dismissal on the fact that he walked out of the aforesaid meeting. 9 .25 With regard to the charge of failure to follow established procedure, there is evidence on record, that the Respondent first raised his grievance over the absence of the letter of transfer with his immediate supervisor~ DW 1. When DWI failed to resolve the matter. the Respondent moved to the next person in the hierarchy , Mr. ENSLIN and later to the Human Resources Manager. It was only after he had seen these superiors and did not get a solution to his grievances that he proceeded to see the Acting Managing Director. 9 .26 From the foregoing and applying our pronouncements in the case of RICHARD JACKSON PHIR1 5 , we hold that the disciplinary panel in this case did not validly exercise its disciplinary powers. There was a breach of the rules of natural justice. Also, we find that there was no substratum of facts to support the disciplinary measure of dismissal of the Respondent from e1nployment. We, • MS Lherefore, agree with the Cour t below that 1·1rlte Re:1pondent was wrongktlly dismissed. Wt; find no ment in the first ground of appeal. 9.27 Coming to the second ground of appeal. we ml.1st state fro1n the outset that we do 11ot ag1·ee· with the· l1>wer Court's order that the Respondent should be reinstated and paid salary arrears .and arrears of allowances that he was entitled to, from the date of his dismissaJ up to t..hc date of reinstatement. It is trite law that the remedy of reinstatemen t Is only granted .in. e."{ceptional c:ases, Tkle Cow·t n1ust exercise extra care ~nd ca'Lttion before g1•anting this remedy .. The Court mus~ ta,ke into account all relevant circumstances of the. c1;1se inclucUng the nature of the allegations thar led to the purported dis,ni.ssa1 and the nature of ihe concerned institution ui1<.1 , in R,:11·tic t.1iar the- kind of working e nvironn1ent the:: employee would be subjected to if reins tated. For example, in a very srnt•ll organization it may not be very a ppropnatc to tirde, reinstatement if the employee's estranged wurkin.g relationship with l1js or her superiors • • canno1 be rne-ndcd. In the: case of BANK OF ZAMBIA V. JOSEPH KAS0NDE12. we said- ''It is tr'itc law that the remedy of r einstateme nt is grante d i.pariQg\y, with great care and j ealoui,ly and with extreme cauti on." l\"/.28 In a.ny cwse, we have no ticed, in the instant case, that the Respondenl <lid not even claim for re.il}statement both in h is pleadings as weU as in his testimony before t.he lower ~vu1 L. A review of the Responl'ien t 0R w1·it of Rummons and statement of claim establishes that what h e prayed for, among other reliefs, was "an order that he be deemed to have been rein.stated and retired from e mployment." It appears frorn the Re xpondent 's heads of a.rguru~n1 lbat Counsel for the..: Respondent was rnutdful ol ~hi;: fact that the Respondent did not ask the Jowet Cou1 L for re1r1::.tatemcnt. Jo the sajd heads of 1;1rgumeot1 Counsel for the Respondent bas oot advance d any ar~n1c11t 111 support c1f lhe lowt•r CoLui ·s order of rcins tatc1nor1 l. ~.29 \V,:,, thcrcfort'. reverse: the lc,we1 C<n.irt \; orckr or rcin~W.\emcnl. It follows tha t the Re ~p<,ndenl 1:i. nor • • 1',0 rl1e 1uwer Court ordered tt, be paid rrvm the date or his, dismissal up Lu the date of reinstatement . 9.dO Ha·.ring,. however, found thal lhe Respondent was Wl'ongfuily c.lismissed, we are of the considered vie,v thlfl he is enti tled Lo some di:Jn1ages for wrongful dismissal. There is ao ev-idence on record on which we can p roperly base the calculation of the said damages. Howc.:ver, we take a leaf fron1 our decision In the case of SWARP SPIN1NG MILLS V. SEBASTIAN CHILESHE AND 30 OTHERS 13 , where ·we held that· ' 11n assessing the damages to be paid aod which are appropriate in each case, the Court does not forget the gener-al ntle wl:aich -applies. This is. that t.he normal meas ure of damages applies and will usually relate to the applicable con tractual length of notice or the notional reasonable notice, where the. contract the normal measure is departed from whe re the circ umstances and the justice of the case so demand. For in.stance. the term•natiC>n may have been inflicted ia a tTai:lmatic fashion which eause,s undue stress or mental s uffering ... . " silent. However, l s 9 .31 ln the presl'nt case, clause 3.6.2 of the Staff Conditions of Employment - Non Contractual Employees provided that lhe applii;able conu·acrual lengU1 or noti1;t> would be ., 1:.1 one 1=alenolar month's notice o n either side. Tl1c· question whfC'b inevitably follows 1:s whether there were Circ'!lmstances in this case which would justify a departure from the award of one month's salary .and allowances as damages 'J.32 lo our vie\\f1 the circumstances in wh.io-h the Respondent waq uismissed from employment woutcl. justify a. dcparttrre from the s.w:lrd uf one ino.nth 's salary and allowanc;es as damages. We have already outlined the said circumstan,ces elsewhere in this jud'gmcn~ ana we do no't see 1t necess.iry to repea l lhem here. In l'ight of t. J,,e s~id circumstances, we award the Respc,ndcnt damages fm· wrongful clismissal equivalent Lo his thJ<ee months' salary and allowances. The damages shall attrat·t interest at the average short term deposit rak prevailing from the date oJ the Writ of Summons to , he date of this judgment and, thcn::aftrr, a t the cu1·1·cn t lt!ndlng n1te, it$ dc:termint!d by Lhe Bru.tk of Zambia up to the· claL.~ 1:>f pn,vmeni. 9. J3 We firid n<1 merit in the second grou11d (Jf nppt:al. .. ,. JS2 10 CONCLUSION 10.01 The Appellant, having failed on the first ground of appeal and succeeded on the second ground, we order that each party will bear their own costs. \ I. C. Marr.bilima CHIEF JUSTICE ~~ M. Malila SUPREME COURT JUDGE ' ' M. Musonda SUPREME COURT GE