Africa Supermarkets Ltd (T/A Shoprite Checkers) v Mhone (Appeal 162 of 2001) [2003] ZMSC 109 (5 June 2003)

IN THE SUPREME COURT FOR ZAMBIA APPEAL NO. 162/2001 HOLDEN AT LUSAKA (Civil Jurisdiction) BETWEEN: AFRICA SUPERMARKETS LIMITED (T/A SHOPRITE CHECKERS) APPELLANT AND ELVIS MHONE RESPONDENT Coram: Ngulube, CJ, Chirwa and Chibesakunda JJS on 9th May 2002 and 5th June 2003 For the Appellants: Mr William Nyirenda of Ezugha Musond and Co. For the Respondents: Mr M JNdlovu of Central Chambers __________________ JUDGMENT____________________ Chibesakunda, JS, delivered the Judgment of the Court Cases referred to: 1. Mallock vs Aberdeen Corporation [1971] 2 All ER page 1278 2. Contract Halulage Limited vs Mumbuna Kamayoyo [1982] ZR page 13 3. Zambia National Provident Fund vs Yekweniya Mbinrwa Chirwa [1986] ZR page 70 4. Glynn vs Keele University and Another [1971] All ER page 89 5. Ridge vs Baldwin [1963] 2 All ER 66 page 71 6. Zambia Airways Corporation Limited vs Gershom B B Mubanga (1990/91) ZR 149 7. Copperbelt Bottling Company Limited vs Phineas Fombe SCZ Appeal No. 37 of 1996 In this appeal the Appellants (who were the Defendants) are challenging the High Courts findings in favour of the (Respondent), who was the Plaintiff in a claim which was against his former employers. The Respondent was seeking declaration that his dismissal was wrongful and therefore null, and avoid. - J2 - The Respondent also claimed for a reinstatement to his substantive post with full benefits or in the alternative damages for wrongful dismissal and for defamation of character plus interest. The facts before the High Court which were not in dispute are that: The Respondent was employed as a sales manager on 1st October 1995. Later he was promoted to the post of Branch Manager, the post he held until his dismissal on the 7th of June 1996. As a branch manager his earnings included the following i) ii) iii) Basic pay of KI 000 000 00 per month; Sunday overtime allowance K50 000 00; and Yearly bonus of K2 000 000 00. He had a written contract reflecting all these conditions of service. As a branch manager he was first given three months probation period pending his confirmation. On 26th May 1996 in a hand written note the Respondent was put on 48 hours suspension, which was later, extended to 3rd June on account of money that was stolen from the Appellant's Lusaka Branch on 23rd May 1996. A meeting was then convened on 4th June 1996 to inquire into these alleged missing funds. At that meeting the general manager, Mr Mauritz Alberts, who initiated the disciplinary proceedings, presided over this meeting. The Respondent was found responsible for the missing funds in that he failed to follow company procedures through the events of 23rd and 24th May 1996 and that this resulted in a colossal amount being misappropriated. Before the High Court it was argued for the Respondent that since the Appellants did not follow their own procedures in dismissing the Respondent and that they did not observe rules of natural justice in that the Respondent was J3 never asked to exculpate himself and that the general manager who initiated these disciplinary measures, at the same time did preside over the meetings which inquired into these missing funds, according to this argument the general manager could not therefore act impartially at the meeting, which resulted in the Respondent being dismissed. It was therefore argued that the dismissal was null and void and as such the Respondent was entitled to either reinstatement or damages equivalent to all the perks from the time of the purported dismissal to the time of the judgment. For the Appellant it was argued, citing Mattock vs Ap Corporation (1), Mumbuna Kamovovo vs Contract Haulage Limited (2) and the case of Zambia National Provident Fund vs Yekweniya Chirwa (3) that although the rules of natural justice may not have been observed, the position at law is such that where it is not in dispute that an employee committed an offence for which appropriate punishment was dismissal, and the employer dismisses him without following the procedure prior to the dismissal laid down in a contract of service, no injustice is done to the employee by such failure to follow the procedure and that that employee has no claim on the ground that there was no observance of natural justice or the rules of procedure. However, inpite of this argument the learned trial Judge held that non observance of the rules of natural justice denied the Respondent his protection under the law and denied him access to equity Before us Mr Nyirenda in his written arguments as well as oral arguments argued that the learned trial Judge misdirected himself in holding that the Respondent was wrongfully dismissed on the basis that the Appellant did not observe the rules of natural justice and as such denied The Respondent access to equity. He once again cited the same case of Mattock vs Aberdeen Corporation (1), Contract Haulage Limited vs Mumbuna Kamavovo (2). J4 Zambia National Provident Fund vs Yekweniva Mbiniwa Chriwa (3) and Glynn vs Keefe University and Another (4) an English case, making the same point that where it is not in dispute that an employee has committed an offence for which appropriate punishment is dismissal, and the employer dismisses him without following the procedure prior to the dismissal laid down in a contract of service, no injustice is done to that employee by such failure to follow the procedure and that that employee has no claim on the ground that there was no observance of rules of natural justice or the rules of procedure. He went on to submit that applying this principle of law to the facts before us the learned trial Judge should have considered whether or not the Respondent conducted himself in such a way that warranted his dismissal. According to him in the case before us what should have been considered by the learned trial Judge is the question whether or not the relationship between Respondent and the Appellant was that of a pure master and servant relationship; and if he concluded that was the relationship, therefore the lower court should have indicated whether the conduct of the employer in terminating that relationship amounted to a breach of contract. If the answer was positive then the Respondent should have been only entitled to damages measured by the period of notice in the contract. His view, however, was that since the conduct of the Respondent was such that he warranted dismissal as a form of discipline then he was not entitled to any damages as was held in the case of Zambia National Provident Fund vs Yekweniya Chirwa (3). He observed that according to the evidence, which was before the court, the Respondent denied being responsible for the missing funds. However, he nonetheless accepted in his letter of appeal that he failed to carry out the directives from his superiors and that he tampered with the alarm system. This amounted to acceptance by the Respondent that his conduct contributed to the missing of funds. - J5 - On ground two, Mr Nyirenda's argument was that the learned trial Judge erred in law and in fact in finding that the Respondent was entitled to damages for salary arrears effective from 1st October 1995 to the date of dismissal. He argued that at law the damages for breach of contract, where there is employer and employee relationship and where an employee is successful in his claim for damages for wrongful dismissal, are measured by looking at the notice period and damages are equivalent to that period. He cited Zambia Airways Corporation Limited vs Gershom B B Mubanga (6) and Copperbeit Bottling Company Limited vs Phineas Fombe (7) as authorities for that principle of law. Mr Ndlovu in response argued that the learned trial Judge was on firm ground in arriving at the conclusion that he did. Relying on his written heads of argument he argued that in cases of wrongful dismissal it is important to look at the facts and see whether at the end of the day a breach of contract has been established. He cited the case of Riode vs Baldwin (5). He also referred to the case of Mattock vs Aberdeen Corporation (1) and argued that in the case before us the Respondent was not given a fair hearing and he was not given an opportunity to exculpate himself. He went on to underscore some of the points in favour of the Respondent. He argued that at page 149 line 24 of the record the Appellant conceded to the fact that the Respondent was not responsible for handling cash and therefore ought not to have been charged with the offence for which he was dismissed. He therefore argued that the lower court's findings that the Respondent was wrongfully dismissed were not based on the non observance of natural justice but that such findings were based on considering that had the Appellants observed that they would have established that the Respondent did not commit an office to warrant dismissal. J6 On ground two, he argued that the lower court rightly awarded the Respondent salary arrears effective 1st October 1995 being his date of suspension to the date of dismissal. These were the arguments before us. We have considered the evidence before the lower court and also the arguments before us. It is trite law that rules of natural justice do not have to be observed in an employer/employee relationship where it is not in dispute that an employee has committed any offence for which appropriate punishment is dismissal. In such a case the position at law is that even if the employer dismisses that employee without following the procedures laid down in the contract of service prior to the dismissal no injustice is done to that employee by such failure to follow the stipulated procedures and that employee has no claim on the ground that there was no observance of rules of natural justice or the rules laid down in his contract of service. In this case, before us, we are satisfied that had the learned trial Judge properly considered the evidence before him he would have found that the evidence was such that the Respondent was properly dismissed as he himself accepted in his letter of appeal that his misconduct contributed to the loss of money. We have therefore found merit on ground I. Having made this finding on Ground I we will not deal with Ground II. Costs to be borne by each party. M M W S Ngulube CHIEF JUSTICE D K Chirwa SUPREME COURT JUDGE L P Chibesakunda SUPREME COURT JUDGE