Butler Asimbuyu Sitali v Central Board of Health (SCZ APPEAL NO. I 78/99) [2001] ZMSC 162 (28 December 2001)

,r • •-- . . ... 1_'-: THE SUPREME COURT OF ZAMBIA BOLDEN AT LUSAKA ( Civil Jurisdiction) SCZ APPl~A L NO. I 78/99 · BUTLER ASIMBUYlJ SITALI - AND APPELLANT CENTRAL BOARD OF HEALTH _'·-, RESPONDENT Coram: / Sakala, Chaila and Chirwa JJS., 30lh October and 28°' December, 2001. JFor the Appellant: In Person. For the Respondent: Mr. W. Mubanga of Permanent Chambers. Sakala, J. S., Delivered the Judgment of the Court. JUDGMENT Our brother, The Hon. Mr. Justice Matthew Siwakwi Chail~ having died before delivery of' this judgment, this Judgment is therefore by majority of the members of the court that hcnrd the appeal. May Our Brother's Soul Rest In Peace. This is an appeal against the Judgment of the Industrial Relations Court dismissing the Appellant's complaint challenging the termination of his employment with the Respondent The facts of the case are that by a letter dated l 8th April, 1997, the Appellant was appointed 1,,,--- Board Secretary for the Respondent with effect from 1 st May, 1997. The letter of appointment did not stipulate the duration of the employment. However, the advertisement to which the Appellant responded was to the effect that the Respondent was offering employment of a Board Secretary on a three year contract with a possibility for renewal. The I etter of appointment specifically stated that, apart from personal emoluments attached to the post. other contractual issues were to be advised in due course. It appears from the evidence that : J2 . these other contractual issues were not advised before the Appellant's termination ;of his employment. On the 4th July, 1997, the Director-General of the Respondent instructed the Appellant to make necessary arrangements for an Extraordinary Board Meeting for 8th July, 1997 at Ndola. The Board Members were advised by the Appellant to be at the Airport by 07.00hrs. This time was rescheduled to 07.30 hours as arrival time at the airport and 07.45 hours as departure time. It was not indispute that on the 8th July, the Appellant was not at the Airport at the time the Board Members departed for Ndola. It was common cause that the Appellant did not attend the Board Meeting at Ndola. It was also common cause that the Appellant did not communicate on that very day of his inability to attend the meeting. By letter dated 9th Jul y, I 997, the Appellant was suspended for failing to turn up for the E xtraordinary Board Meeting held in Ndola on Tuesday, g11i July, 1997. He was given 48 hours within which to exculpate himself in writing. On the same date of the 9 th July, the Appellant submitted a detailed exculpatory letter. But by letter dated l 0 th July, 1997, the Appella nt 's services wi th the Respondent were terminated. He was g iven one month salary in lieu of notice. The Appellant fil ed a co mpl aint with the Industrial Relations Court on 6th October, 1997 complaining that there was no basis on facts or law upon which his contract of employment with the Respondent was terminated. He sought the relief of payment of salary arrears and allowances and other fringe benefits for the entire duration of the three year contract or employment ( : J3: The evidence of the Appel Ia11t al the hearing was that, at 06. 00 hours on the 8 th of July, 1997, he went to the office to pick the folders, pens and register of the meeting. At the office, he found the In and Exit lock and the Security Guard who had the keys was not present. He waited for the Guard who had the keys but by 07.10 hours, the Guard had not arrived and so he left for the Airport without the folders and the meeting register. As he approached Roan Air terminal, he saw the Aircraft taxing. It subsequently took off. The time according to him was then 07.32 hours. In considering the complaint, the Industrial Relations Court decided to confine itself to the issue of termination of employment which it considered as the gist of the matter, though according to that court, there were several other issues raised in the complaint. The court accepted that the Appellant was not invited to attend the disciplinary hearing. It noted that there was no grievance and disciplinary procedure code in existence on which the Respondent relied when processing the disciplinary proceedings against the Appellant. Notwithstanding all these, the court observed that the Appellant was a Board Secretary who was the nerve center for all Board Meetings. According to the court, it was extreme gross negligence of duty where without communicating his predicament, the Appellant just kept himself away from the Board Meeting of 8th July, 1997. The court obser':'ed with wonder why the appellant bothered about whatever he wanted to collect from the office and yet the evidence showed that whatever he wanted to collect from the office on the departure date, the Board 'Meeting was successfully held in Ndola without any hitch at all. The court found no merit in the reasons the Appellant gave for failing to reach the airport in time. The Appellant's complaint was dismissed. No order as to costs was made. : 14 . The Appellant, who argued the appeal in person, filed written heads of argument based on 7 grounds of appeal. During the oral arguments, he properly abandoned three grounds of appeal which he conceded did not raise points of law or points of fact and law. Thus, the appeal was argued based on four grounds namely; that the court having found that the Appellant was dismissed without a hearing, it should have proceeded to conclude that the termination of the contract of employment was null and void; that the court misdirected itself in fact and in law by stating that the Appellant's failure to communicate his predicament was a matter of extreme t I • gross negligence of duty, that by failing to address other issues raised in the complaint, the court fell into error, and that in some instances, the cou,1 did not correctly record the evidence and as a result the Appellant was subjected to a mistrial. On the question of the Appellant having been dismissed without hearing, there were written arguments and submissions that the Appellant was present in his office when the Board of Directors was deliberating on his exculpatory letter. Yet, he was not called to attend that part of the meeting ·which dealt with hi s exculpatory letter. The Board chose to only read the Appellant's exculpatory letter and deliberated on it in his absence. The Appellant submitted that the hearing of hi s case called for an oral hearing considering the gravity of the sanction that the Respondent had in mind and especially considering that the Appellant was within Ndeke House, the venue of the meeting and his attendance could therefore have been secured without any inconvenience to any party. lt was also submitted that by denying the Appellant a hearing, the Respondent denied the Appellant an opportunity to comment or reply to any adverse queries or questions that the Respondent's Board Members might have had in respect of the Appellant's exculpatory letter. The Appellant complained, that despite his request in : JS: his exculpatory letter for an oral hearing, the Respondent's Board ignored or denied him such a request. We heard submissions that as a result of being ignored, he suffered prejudice in that he was not accorded an opportunity to answer some of the questions raised in the meeting in particular why he could not phone the Board Members in Ndola and advise them of his dilemma why he could not drive to Ndola after being left and why it was necessary for him to collect the materials he wanted from the office before departing for Ndola. In his oral submissions, the Appellant argued that the Respondent being a creature of a statute, his appointment was pursuant to an Act of Parliament and hence the Board was obliged to observe C rules of natural justice. In response to arguments and submissions on this ground, Mr. Mubanga, who also filed written heads of argument. submitted on behalf of the Respondent that the termination of the Appellant's Contract of Employment by the Respondent was lawful and not null and void. Counsel submitted that the Appellant's blatant negligence and failure to tum up for the Respondent's Extra Ordinary Board Meeting without any lawful excuse and justification was very serious negligence and breach of the Appellant'~ duty amounting to gross misconduct on his part thereby justifyin g his summary dismissal. It was further submitted that the Appellant ( could not be heard to argue that he was not heard considering the crncial fact that on record, he made lengthy written presentations in his own defence in his exculpatory letter which letter was circulated to the Respondent's Board Members at the Board Meeting before a final decision was taken to terminate his employment. We have considered the arguments and the submissions relating to the issue of hearing. Our short answer to all these submissions is that there was a misconception on the part of the court I as to what amounts to a hearing. The Appellant, too, seemed to labour under the same misunderstanding of what amounts to hearing. «Hearing" for purposes of disciplinary J6 proceedings is not only confined to physical presence of an accused and giving oral evidence. In- our view, a submission of an exculpatory letter in disciplinary proceedings is a form of hearing. What is important is that a party must be afforded an opporrunity to present his or her case or a defence either orally or in writing. On the facts of the case before us, .. we do nm I agree with the finding of the Industrial Relations Court that the Appellam was not given a fair i hearing. The Appellant was given a lener of suspension in which the reasons for the : t suspension were explained. He was requested to submit an exculpatory letter which he did. : The Respondent considered the letter, altnough the Appellant, was not physically present. In these circumstances. we are satisfied that he had a fair hearing. This ground of appeal cannot therefore succeed. On the question of the Appellant's faiiure to commurucate, as being: a maner of ~oss negligence of duty, the Coun in its judgmem observed that the Appellant was a Board Secretary who was the ner: e center for all the Board Meetings. The Appellant submitted thar ( there was no evidence to suppon this finding. Mr. Mubanga submined that there was abundant evidence on record supponing the court's findings. Counsei pointed out that it was common cause that the Appeilant having failed to turn up for the Board ?v-feeting on 8th July. 1997, also faiied to communicate his predicament to the Board ?-.,,[embers . . .\bove all, he ;-ieve!" apologized for his absence at the meeting. Counsel contended that lhe . .\ppeilam couid ar least have made a telephone cail to the Board Chairman to communicate with the Board Members anending the me~ring at the materiai time. Counsel also pointed out lhat the : J7: Appellant could have driven to Ndola. But he did none of these things. V,/e have considered the judgment of the court. We find no basis to fault the findings. The findings were supported by the very failure of the Appellant to communicate. This ground of appeal cannot also succeed. The third ground of appeal criticised the finding that the Appellant kept himself away from the Board Meeting of 8th July, 1997. ln our view, the Appellant's explanation for his failure to attend. the Board Meeting in Ndola on 8th July, 1997 and to communicate with the Board Members, justified the court's finding. We find no merit in this ground too. The last ground of appeal criticised the court for not correctly recording the evidence. The Appellant drew our attention to a number of pages where he alleged that the evidence was not correctly recorded and invited us to call for notes from the court below. Counsel for the Respondent pointed out that the alleged omissions were typing errors which were not in any way or at all fatal o r prejudicial to the Appellant's case. It was submitted on behalf of the Respondent th at there was no miscarriage of justice as a result of the alleged omission or typin g error. We have considered the all eged errors in the record. The issues before the court centered on termination of the Appellant' s employment. The evidence established that the termination of employment was based on the Appellant's failure to attend the meeting in Ndola. We are satisfied that the Appellant was not prejudiced by the alleged errors in the record . This ground of appeal can not succeed also. All the grounds argued before us having not been successful , ( ( -~he a~pe~l _ i~ di smissed. We too make no order as to costs . . l:J (''.? (/-7 / <3 ... ~~~-- .. c.~ . .. . a/a:. .. .. ...... .. .- .. E. L. Sakala, SUPREME COURT JUDGE r> ,,// (/.// . /, v'/.: ...,.:,! u ..... . - - (:J/~~F!iXJJ . D. K . Chi1wa, SUPREI\1E COURT JlJDGE SCZ APPEAL NO . I 78/99