Titus Mpembamoto v Dulux Zambia (2005) Limited (APPEAL NO. 177/2018) [2019] ZMCA 337 (28 August 2019)

' .. IN THE COURT OF APPEAL OF ZAMBIA HOLDEN AT NDOLA (Civil Jurisdiction) APPEAL M~ 177/2018 BETWEEN: CORAM: Chashi, Mulongoti and Lengalenga, JJA On 21st August, 2019 and 28th August,, 2019. For the Appellant: Mr. Tafeni - Messrs Suba, Tafenii & Associates For the Respondent: Mr. R. Ngulube - Messrs Tembo, Ngulube & Associates JUDGMENT LENGALENGA, JA delivered the Judgment of the Court. Cases referred to: 1. BANK OF ZAMBIA v KASONDE (1995 - 97} ZR 238 :{SC) 2. LISWANISO SITALI & ORS v MOPANI COPPER MINES . PLC (2004) ZR 176 t • ' ' J1 3. ATTORNEY GENERAL v RICHARD JACKSON PHIRI (1988-89) ZR 121 4. JOSEPH CHITOMFWA v NDOLA LIME COMPANY LTD (1990 - 92) ZR 172 5. MASAUSO ZULU v AVONDALE HOUSING PROJECT LTD (1982) ZR 172 6. ZAMBIA NATIONAL PROVIDENT FUND v CHIRWA (1986) ZR 7. NATIONAL BREWERIES LTD v MWENYA (2002) ZR 118 8. ZAMBIA ELECTRICITY SUPPLY CORPORATION LTD v DAVID LUBASI MUYAMBANGO (2006) ZR 22 9. UNDI PHIRI v BANK OF ZAMBIA - SCZ JUDGMENT NQ 21 OF Legislation referred to: 1. THE EMPLOYMENT ACT, CHAPTER 268 OF THE LAWS OF ZAMBIA Other works: 1. W. S. MWENDA, EMPLOYMENT LAW IN ZAMBIA: CASES AND MATERIALS, UNZA PRESS, LUSAKA (2011) 2. N. M. SELWYN, SELWYN'S LAW OF EMPLOYMENT, 14TH EDITION, OXFORD UNIVERSITY PRESS. 1.0 INTRODUCTION 1.1 This is an appeal against the judgment of the Industrial Relations Division of the High Court, delivered by Judge E. L. Musona on 28th June, 2017. f ' ' . J2 2.0 BACKGROUND OF THE APPEAL 2.1 The background of this appeal 1s that the Appellant herein (Complainant in the Court below) filed a Complaint in the Industrial Relations Division of the High Court against the Respondent herein, challenging his dismissal. 2.2 The Appellant's claim was for the following relief: (i) Damages for wrongful and/or unfair dismissal. (ii) April, 2015 salary in the sum of K9 675.00 and leave pay in the sum of K45 646.80. {iii) Any other relief the Court may deem fit. (iv) Interest on the sums found due. {v) Costs. 2.3 According to the evidence on record the Appellant was employed by the Respondent in August, 2008 and he was later appointed a Depot Supervisor. He was in charge of operations at the Respondent's Kitwe Depot and his duties included supervision of staff, stock management and sales. He was also responsible for initiating cycle and monthly counts to ensure that stock in the system and physical stock balance. f • • • ' ' J3 2.4 From the 3rd quarter of 2014 to April, 2015 the Respondent company experienced alarming stock shortages at its Kitwe Depot which was supervised by the Appellant. This prompted management to send the Finance Manager to the Kitwe Depot to conduct a stock count and verification exercise. The said exercise revealed a sh0irta.ge of stock amounting to over K178 000.00. 2.5 The said discovery by management led to the Appellant be'ing charged with dishonesty and gross negligence of duty as he was responsible for the operations of the Kitwe Depot and aocountablle to management. 3.0 CONSIDERATION OF EVIDENCE AND FINDINGS BY THE COURT BELOW 3.1 After considering the evidence, the learned tr;ial judge considered the reliefs sought by the Appellant. 3.2 With regard to the Appellant's claim for wrongful and/or unfair dismissal, the learned trial judge opined that wrongful dismissal involves breach of a term of the contract of emp:loyment. 3.3 He stated that upon consideration of all the evidence, he d:id not find any breach of the contract of employment to warrant the Appellant I ' . ' J4 being awarded damages. He relied on the case of BANK OF ZAMBIA v KASONDE 1 where it was held that if the dismissal is not on proved grounds, it amounts to wrongful dismissal. 3.4 In the Appellant's case, the learned trial judge found that the dismissal was on proved grounds. He based his reasoning on the fact that after the Appellant was charged with dishonesty and negligence, in his exculpatory statement dated 30th April, 2015, he did not dispute the shortage but only the amount. 3.5 With respect to the charge of negligence the learned trial judge noted from the Appellant's exculpatory statement that he stated that he was left with little or no time to check on the stock as he was in the field most of the time and that he depended on information relating to the stock from his subordinates. He consequently found that negligence on the Appellant's part was established. 3.6 He, however, accepted that it was established in evidence that when the Appellant took over at the Kitwe Depot there was a shortage of about K30 000 for which the Appellant could not be faulted. He further noted that later after the Appellant had taken charge of the depot, the shortage accumulated. . . JS 3.7 The learned trial judge further found that the a'llegation of negligence levelled against the Appellant was justifiable as he admitted a lack of interest in stock taking . 3.8 Consequently, he found that the claim for wrongful dismissal failled. 3.9 In relation to the claim of unfair dismissal, he opined that a dismissal is unfair if the disciplinary procedure leading to dismissal 1is not followed. In the Appellant's case, the learned trial judge noted that evidence on record indicated that the Appellant was charged and afforded an opportunity to be heard and also given an opportunity t:o appeal against his dismissal and that he lost the appeal. 3.10 Consequently, he found that the dismissal was not unfair as alleged and he, accordingly, dismissed the Appellant's claim for damages. 3 .11 With respect to the Appellant's claim for payment of his Apriill, 201:S salary in the sum of K9 675.00 and leave pay amounting to K45 048.80, it was noted that the Respondent admitted w1ithhollding the Appellant's April 2015 salary and payment of leave days following the shortage in the stock. The learned triial judge noted that the Appellant did not dispute the shortage. He therefore, opined that the Appellant as the custodian of the merchandise, was accountablle ·for J6 the stock and that the Respondent was justified to exercise a lien on the Appellant's April 2015 salary and leave pay. 3.12 To support this position, he relied on section 45(3) of the Employment Act, Chapter 268, which empowers an employer to make deductions from an employee's wages with or without his or her consent. 3.13 Having considered all the Appellant's claims, he found the action to be devoid of merit and he, accordingly, dismissed it and made no order as to costs. 3.14 Dissatisfied with the decision by the Court below, the Appellant has appealed to this Court and advanced the following grounds of appeal: 1. 2. 3. The learned High Court judge erred at law and in fact when he dismissed the Appellant's claim for damages for wrongful dismissal on the basis that the . Appellant was faulted for some excess load and that the Appellant had said he had almost lost interest in stock taking which pointed to the alleged negligence he was charged with. The learned High Court judge erred at law by not making a finding on the alleged gross dishonesty against the Appellant. The learned High Court judge erred at law and in fact when he held that dismissal is unfair if the disciplinary procedure leading to dismissal is not followed. J7 4. 5,. 6,. 7. The l,earned High Cou1rt judge erred at law and in fact when he held that th•e Respondent were justified to exercise a .lien on the AppeU,ant's April, 2015 salary and leav,e pay,. The learned High Court judge erred at law and in fact when he held that section 45(3) of the Employment Act, Cap. 268 of the llaws of Za1mbia empowers an employer to deduct f 1rom the wag,es :of an employee whether the ,employ,ee consents or not. The !learned High Cou·rt judge erred at law and in fact the wh,en he held Respondent. that the . Appellant still owed The learn,ed High Court judge erred at law and in fact when he held that an employee must exercise a duty of care ov,er the p1ro1pe1rty of the employer and if the .employer loses 1property as a result of the employee's negligence or theft, the ,empltoyer has a right at law to •ex-erdse a lien over the employ,ee's unpaid benefits. 4.0 . APPELLANT'S ARGUMENTS IN SUPPORT OF APPEAL 4.1 The Appeillant's heads of argument were filed into court to support the grounds of appeal!.. 4.2 Grounds one, two and three were argued together. The gist of the Appellant's .arguments 1is that no stock take had occurred during the period 1st October, 2014 to 28th February, 2015, as stock loss of such magnitude of Kl 78 385.00 was too !large to lose over such a short period of time. 4.3 Furthermore, the AppeHant bllamed the management for negligence for the l:ack of handover by Mr. W'itol,a Ntavizi to himself when he toolk over as Depot Supervisor in 2013. He also faulted the learned trial judge for taffing to take the Appellant's evidence into account that the alleged loss did not comp1letely occur during his tenure as Depot Supervisor. 4.4 It is the Appellant's contention that his evidence in the Court below and during the discipiliinary process was not an admission of negl·igence but an explanation of the manner the depot was managed by his supervisors inspite of h1is numerous complaints and recommendations ior improvement. He stated that he also conducted stock takes and reconciliat1ions which he sent to Lusaka and repo1rted unbalancing stock but nothing was done. 4.5 The Appellant argued that no evidence of dishonesty on his part was adduced and that his name was tarnished without reasonable cause and that he would find it very difficullt, if not impossible to find employment as no employer can be expected to employ a dishonest J9 person (see LISWANISO SITALI & ORS v MOPANI COPPER MINES PLC2 ) . 4.6 It is the Appellant's contention that his dismissal was wrongful as the allegations against him were baseless because no negligence or dishonesty was proved by the Respondent. It was further submitted that the Respondent did not exhibit the Disciplinary Code to show the offences and penalties for the offences. 4.7 With regard to ground three, it is the Appellant's contention that the learned trial judge mixed up what amounts to wrongful dismissal with unfair dismissal. To support this argument, reliance was placed on EMPLOYMENT LAW IN ZAMBIA: CASES AND MATERIALS, at page 136 where the learned author, Dr. W. S. Mwenda states that: "Unlike wrongful dismissal, which looks at the form, unfair dismissal looks at the merits of the dismissal and form is only supportive of the whole merits for the dismissal. In other words, under unfair dismissal, the Court will look at the reasons for the dismissal to determine whether the dismissal was justified or not." 4.8 It was further submitted that the foregoing was echoed in the case of ATTORNEY GENERAL v RICHARD JACKSON PHIRI 3 by the Supreme Court when it observed that: JlO " ....... once the correct procedure has been followed, the only question which can arise for the consideration of the court based on the facts of the case, would be whether there were in fact established to support the disciplinary measure since any exercise of power will be regarded as bad if there is no substratum of fact to support the same." 4.9 It was submitted that it was a misdirection for the trial judge to have held that the dismissal was unfair if the disciplinary procedure leading to dismissal is not followed. It was further submitted that when the disciplinary procedure is not followed, that amounts to wrongful dismissal. 4.10 It was further submitted that in casu, on the totality of the Appellant's submissions, his dismissal was unfair as it was the Respondent's management which was negligent. 4.11 Grounds four, five, six and seven were also argued together. The Appellant challenges the trial Court's finding that the Respondent was justified to exercise a lien on the Appellant's April, 2015 salary and leave pay, as being contrary to the protection of wage provisions in the Employment Act. He submitted that section 45(1)(b) and (d) of the Employment Act, Chapter 268 of the Laws of Zambia does not permit deduction of wages for alleged damage, loss, dishonesty or ' ' Jll negligence without the written consent of the employee. It was further submitted that the Respondent's reply to the Appellant's letter of demand exhibited in the record of appeal acknowledged that it had to seek the employee's consent for deduction of wages and that it did not obtain the Appellant's consent. 4.12 It is the Appellant's contention that the Respondent's citation of section 45(3) of the Act as authority for holding that it was entitled to deduct the Appellant's wages without his consent, was a grave mis direction by the trial judge. It was submitted that section 45(3) of the Act permits such deductions without consent of the employee where there is another law that so permits and that in this case, the trial judge did not cite any written law allowing such deduction or withholding of the Appellant's earnings. 4.13 It was finally submitted that the judgment of the Court below be set aside and be substituted with judgment for the Appellant for damages for wrongful and unfair dismissal. Furthermore, that he be paid the deducted April 2015 salary and leave pay with interest from date of separation until full payment at bank lending rate. ' ' J12 4.14 It is the Appellant's contention that the deduction of his salary by the Respondent was harsh and caused him immense suffering as he left emplloyment with nothing and that his dismissal reduced his job prospects. ft was, therefore, submitted that this is a proper case in which the Appelllant should be awarded two years salary as damages on the authority of the case of JOSEPH CHITOMFWA v NDOLA LIME COMPANY L TD4 where the Supreme Court held inter a/ia that: "Silnc,e the A:ppenant's future job prospects were almost nil. He shoulld 1receive two y,ea1rs salary and perquisities as dama,g,es,. '" 5.0 RESPOND1ENT'S ARGUMENTS IN OPPOSITION TO THE APPEAL 5.1 Respondent's heads of argument were fi 11ed into court on which Mr. R. Ngulube, Counsel for the Respondent relied. 5.2 In response to the Appellant's heads of argument, he submitted that since the Appellant alleged that he was unfairly and/or wrongfully dismissed from the Respondent's employ, the burden of proof rests on h'im to prove on a lbailance of probabilities that he was unfairly and/or wrongfully dismissed. He referred this Court to the case of J13 MASAUSO ZULU v AVONDALE HOUSING PROJECT LTD5 where the Supreme Court held that: "Whe,re a Complainant alleges that he has been wrongfully or un1lawfuHy dismissed as in any other cases where he makes any aUegation, it is generally for him to p1rove those allegations. A Complainant who has failed to p1rov,e his case cannot be entitled to judgment, whatso,ever may be said of the ,opponent's case." 5.3 In response to the Appellant's allegation, the Respondent contended t hat he was not unfairly and/or wrongfully dismissed as a substratum of facts existed that the Appellant had conducted himself in a manner that justified the dismissal. It was further argued by Counsel for the Respondent that the procedure was followed and the Appellant was heard and that as such the issue of wrongful dismissal could not ariise. He further argued that the Respondent was within the law by withholding the Appellant's wages and leave pay, to offset the loss incurred by the Respondent. 5.4 Counsel for the Respondent argued grounds one, two and three together. He drew this Courrt's attention to the fact that the Appellant was charged for dishonesty and negligence as indicated by the disoiplinary charge form that is exhibited in the record of appeal. He submitted that the said disciplinary charge form expressly refers ' . J14 to the period of 1st October, 2014 to 28th February, 2015 as the period within which the loss of Kl 78 385.00 was caused. 5.5 Mr .. R. Ngulube submitted that ,ground one is premised on the holding of the Court below where it was discussing unfair dismissal but it inadvertently referred to the discussion as wrongful dismissal. He fU1rther submitted th.at the Court below however thereafter discussed wrongful dismissal and he argued that, therefore, the same cannot amount to a misdirection in law and fact when the correct facts and evidence ,are presented on record. 5.6 To fortify this argument, Mr. R. Ngulube referred this Court to the holding of the Court below when it stated that: "I have also noted at top paragraph of page two of the Co1mplainant's ,exculpatory statement dated 30th April, 2015 and exhibited as exhibit "TM3," that, the Complainant stated that he had almost lost interest in st(ock tak'ing. This is worrisome because it points to the alleged negligen,ce which he was charged with. Surely, a pers,on shoulld n,ot los,e i1nterest in stock taking because that ls one of core functions of a supervisor in a depot such as the one where the Complainant was employed to superintend upon" On the above basis, the claim for wrongfu,I (unfair) dismissal fails." 5. 7 Counsel for the Respondent submitted that from the foregoing, it can be noted that the holding of the Court below was based on the . , • J15 evidence on record. He argued that the Appellant admitted that there was a loss amounting to K181 938.00 when the December, 2014 stock take was undertaken and he drew this Court's attention to the fact that the said stock take was within the period of 1st October, 2014 to 28th February, 2015 when the loss occurred. 5.8 He submitted that during cross-examination the Appellant confirmed that when he was appointed Depot Supervisor, he understood that he would be answerable for failure to supervise Peter Chola who was directly under him if anything went wrong. 5.9 He further submitted that the Appellant's negligence is further revealed by his evidence in cross-examination where he stated that he expected his juniors to give him accurate information, without himself verifying the stock. 5.10 Mr. R. Ngulube submitted that the position on unfair dismissal is aptly stated in SELWYN'S LAW OF EMPLOYMENT 14th Edition at page 411 where the author states that: "there are two stages in the process of determining whether or not a dismissal is fair. The first is the means whereby the decision is reached; that is, the procedures followed by the employer before arriving at the decision to dismiss the employee. The second stage is the actual • • J16 decision taken; whether the employer acted reasonably in dismissing the employee." 5.11 He further submitted that the Supreme Court of Zambia also had occasion to pronounce itself on the foregoing principle in the case of ATTORNEY GENERAL v RICHARD JACKSON PHIRI that was cited by Counsel for the Appellant. 5.12 Counsel for the Respondent submitted that in casu, there was a substratum of facts established to warrant the dismissal of the Appellant from the Respondent's employ as shown by the evidence on record. 5.13 With respect to ground two, it was submitted that the Court below expressly stated that it had found that the Appellant had been dishonest as he did not dispute the shortage but only the amount according to his exculpatory statement and also by his own admission in his evidence on record. 5.14 In response to the Appellant's assertions that his dismissal was unfair as it was the Respondent that was negligent because his many attempts to alert the Respondent regarding the unbalancing stock at the Kitwe Depot from the time he took over remain unheaded, Counsel for the Respondent submitted that the said assertions are J17 untenable. He argued that the Appellant had testified that it was his responsibility to verify the information on stock and that as such, the said evidence proves that a substratum of facts existed that warranted his dismissal, and that as such the said dismissal cannot be said to have been unfair. 5.15 Grounds four, five, six and seven were argued together as they are premised on the Respondent's exercise of a lien on the Appellant's April, 2015 salary and leave pay to offset part of the loss incurred by the Respondent. 5.16 Mr. R. Ngulube submitted that the evidence on record discloses that the deduction was effected after the Appellant had been dismissed and was no longer an employee of the Respondent. He argued that, therefore, section 45 of the Employment Act was not applicable and that it was not feasible to obtain the Appellant's consent to deduct the April 2015 salary and leave pay. 5.17 Counsel for the Respondent argued that whilst the Court below made reference to the provisions of section 45 of the Employment Act, that reference did not form the basis of his decision that the Respondent · was entitled to withhold the Appellant's April 2015 salary and accrued leave days pay. He submitted that the basis of the decision is found at page 18 of the record of appeal where the Court held that: "The Respondent in this case were justified to withhold payment to the Complainant because the Complainant admitted the shortage of the stock during the period when the warehouse was under his custody. He only disputed the amount, but even then, the admitted amount is more than what the Respondent withheld. In other words, the Respondent are still owed by the Complainant." 5.18 It is the Respondent's contention that the Court below cannot be faulted for holding as it did. Mr. R. Ngulube submitted that the Appellant claimed a total of K54 721.80 for the April, 2015 salary and leave pay whilst the Respondent had incurred a loss of K181 938.00 which is more than the K54 721.80 claimed by the Appellant. 5.19 In conclusion, Counsel for the Respondent argued that the Appellant did not lead any evidence to prove that the Respondent unfairly and/or wrongfully dismissed him from employment as alleged. He submitted that, therefore, the Court below was on firm ground when it held that the Respondent could exercise a lien over the Appellant's April 2015 salary and leave pay for the loss it suffered on account of Appellant's dishonesty and negligence. Jl9 5.20 He prayed that this Court upholds the judgment of the Court below with costs to the Respondent. 6.0 CONSIDERATION OF THE APPEAL AND DECISION BY THIS COURT 6.1 We have considered the appeal, the respective arguments by the parties hereto, authorities cited, evidence on record and judgment appealed against. 6.2 As earlier stated, grounds one, two and three were argued together. The gist of these grounds of appeal is that the Court below misdirected itself in dismissing the Appellant's claim for damages for wrongful dismissal based on gross dishonesty and negligence in the absence of a finding of gross dishonesty being made against him. It was further contended that the Court below erred in law and fact by holding that dismissal is unfair if the disciplinary procedure leading to the dismissal is not followed. 6.3 With regard to grounds one and two, we considered the fact that in every disciplinary case leading to summary dismissal, the trial Court's duty is to determine whether or not the disciplinary procedure in charging and affording the employee a hearing was followed . J20 6.4 In the Appellant's case, the learned trial judge found that the dismissal was on proved grounds. He based his reasoning on the fact that the Appellant was formally charged with dishonesty and negligence and given a hearing before being dismissed and he was also given an opportunity to appeal against his dismissal and he lost the appeal. 6.5 To fortify his finding, the learned trial judge made reference to the fact that in the Appellant's exculpatory statement dated 30th April, 2015 that was exhibited as "TM3" before the Court below, he did not dispute the shortage but only the amount. 6.6 With regard to the charge of negligence, he further noted that in the said exculpatory statement, the Appellant admitted that he almost lost interest in stock taking which was one of his core functions as Supervisor of the Respondent's Kitwe Depot. 6.7 In addition to the aforestated, he noted that the Appellant further stated that he was left with little or no time to check on the stock as he spent most of his time in the field and that he relied on the information relating to stock that his juniors gave him. ' ' I J21 6,.8 With regard to ground three on the learned trial judge's inadvertent reference to unfair dismissa,I instead of wrongful dismissal with respect to d1isciplliinary procedure, in its holding, we find that the mix up is not fatal as to affect the outGome of the appeal. We hold this view because the learned trial judge properly analysed the evidence w1ith respect to the d~sciplinary procedure and satisfied himself that it was properly toUowed. He also considered the evidence before him on the charges of gross dishonesty and negligence and properly found that the eviidence justified the Appellant's dismissal. 6.9 Furthermore, it is trite law that in civi1I matters, the onus of proving a cilaim or alilegation lies on the pla,int'iff on a balance of probabilities. Hence the case of WILSON MASAUSO ZULU v AVON DALE HOUSING PROJECT LTD relied on by Counsel for the Respondent is appropriate to support his argument that a plaintiff who has failed to prove his case is not enbtled to judgment. 6.10 Before we move away from these three grounds of appeal, we must hasten to state that 1it is trite llaw that where it is not disputed that an employee has committed an offence tor which the appropriate punishment is dism1issal and he is so dismissed, no injustice arises . ' ' J22 from a failure to comply with the laid down procedure in the contract and the employee has no claim on that ground for wrongful dismissal or a declaration that the dismissal is a nullity. Authorities on this principle of law abound (see ZAMBIA NATIONAL PROVIDENT FUND v CHIRWA6 , NATIONAL BREWERIES LTD v MWENYA7 , ZAMBIA ELECTRICITY SUPPLY CORPORATION LTD v DAVID LUBASI MUYA. MBANG08 and UNDI PHIRI v BANK. OF ZAMBIA9 ). 6.11 Therefore, we find that the learned trial judge was on firm ground when he dismissed the Appellant's claim for damages for wrongful and/or unfair dismissal. We find grounds one, two and three to be devoid of merit and we, accordingly, dismiss them. 6.12 We turn to grounds four, five, six and seven in which the learned trial judge is faulted for exercising a lien on the Appellant's April, 2015 salary and accrued leave days payment. 6.13 The learned trial judge was further challenged for holding that section 45(3) of the Employment Act empowers an employer to deduct from the wages of an employee whether the employee . . ' ' ' J23 consents or not. For ease of reference relevant parts of section 45 of the Act are reproduced as follows: Notwithstanding any other provisions of this "45,(1) Act,. an emp1l!oyer may make deductions from the wages payablle, to an empl10,yee in res.pect of- l l l l l l l l l l• l l111' 11 11 1111 91 1 ' 1 l l l1 1J l ' l l i l l l l l l l (ai) (b) a r·easonable amount for any damage done to,, or lloss of, any property lawfully in the possession or custody of any e·mployer occasioned by the wilful default of the employee, if such amojunt and its, deduction are duly accepted in writing by such employee; Notwilthstanding the provisions of subsection (1), an employer shall, whether the employee consents to the deduction or not, deduct from the wages of such employee any am1ount which such emplo:yerr is required or em1powered to deduct from1 such wages under any written law.'' (2) (3) 6.14 It is not disputed that the learned trial. j udge made reference to the fact that he had occasion to llook at section 45(3) of the Employment Act in his judgment and the fact that section 45(3) empowers an employer to deduct from the wages of an employee whether the employee consents or not. 6.15 We find that the: reference to that particular provision of the law was not a holding by the learned trial j udge but a mere reference to that J24 provision of the law. Consequently, we find that he cannot be faulted for making reference to a provision of the law for guidance. We, therefore, find ground five to be devoid of merit. 6.16 Ground six faults the learned trial judge's finding that the Respondent are still owed by the Appellant. We had occasion to peruse the record of appeal and particularly, the Appellant's evidence in re examination at page 65 where he stated that: "The amount in the charge sheet of K178 385 refers to the adjusted amount." 6.17 We also noted that, that amount was the figure mentioned as the approximated value of the stock loss in the affidavit in support of the Answer to the Appellant's Complaint filed in the Court below. 6.18 We, further noted that the Appellant disputed the amount in his exculpatory statement. However, upon perusal of the judgment on record, we observed that the Appellant's April, 2015 salary amounted to K9 675.00 and leave pay to K45 046.80 thereby clearly indicating that the amount deducted from the Appellant was far less than the amount contained in the Appellant's charge sheet. 6.19 Therefore, after considering the evidence on record, we are of the view that the learned trial judge cannot be faulted for noting that the .. ,. J25 admitted amount is more than what the Respondent withheld and that the Respondent is still owed by the AppeUant. 6.20 We find ground six to be devoid of merit and we., accor,ding1ly, dismiss it. 6.21 Finally, we turn to ground seven which is essentially the same ,as ground four. Having perused the judgment and eVidence on record, and the provisions of section 45(3) of the Employment Act and considered the learned trial judge's reasoning in arriv1ing at his decision that the Respondent was justified to wiithhold the Apri:I 2015 salary and leave pay, we find no merit in these tvvo grounds .. 7 .0 CONCLUSION that the entire appeal fails and i · J. hashi COURT OF APPEAL JUDGE .... :J?/lutta~7d~-~-... J. Z. MulongQM- COURT OF APPEAL JUDGE Jj . ........ : ! Y. ...... ....... ·..:.·. •>- ( .• •. . .. ..• F. M. Lengalenga COURT OF AiPPEAIL JUDGE