Ceres Bakery Limited v Mervis Kalaba and 4 Ors (APPEAL No. 27 OF 2017; CAZ/8/25/2017) [2017] ZMCA 501 (5 October 2017)

IN THE COURT OF APPEAL FOR ZAMBIA APPEAL No.27 OF 2017 HOLDEN AT LUSAKA ( Civil Jurisdiction) Cn 9-/ ii Q-S l<Lo 1, BETWEEN: CERES BAKERY LIMITED ... ,aPPELLANT AND MERVIS KALABA & 4 OTHERS RESPONDENT Coram: C. K Makungu, F. M Chishimba, M. M Kondolo J. J. A On 6 th June , 2017 and 5 th October, 2017. For the A/Jpellant: Ms. X: Kaunda from JiN Kaunda Adv~ates Fof the....flee;ppndent.' Me.. JJ--'Jambuluk~iJrJ:>JZJ- ,De rrick N{ui~r.,.g.fl . - --r ~ ..,- - - - -r & Company. JUDGMENT C. K. MAKUNGU, JA delivered the Judgment of the Court. Cases referred to: 1. Minister of Home affairs, the Attorney General v Lee Habasonda (Suing on be half of the Southern African Centre for the Constructive Resolution of the Disputes) S. C. Z Judgment Number 23 Of 2007 - 2. Barclays Bank Zambia plc v Zambia Union of Financial Institution and Allied Workers (2007) ZR 106 3. National Breweries Ltd v Phillip Mwenya SCZ No. 28 of 2002 4. Ward v Bradford Corporation (1971) Limited 70 LG 5. R edrilza Ltd v Abuid Nkazi SCZ Judgment No. 7 of 2011 6. Chilanga Cement plc v Kasote Singogo (2009) ZR 122 ::<b) .___,,,. 7. Swarp Spinning Mills plc v Chileshe and others (2002) ZR 23 8 . Nkhata and 4 others v The Attorney General (1966) ZR 124 9. AMI Zambia Ltd v Peggy Chibuye SCZ Judgment No. 8 of 1999 10. Wilson Masauso Zulu v Avondale Housing Project ltd (1982) ZR 172 11. Zambia China Mulungushi Textiles (Joint venture) Ltd v Gabriel Mwami Appeal No. 28 of 2003 12. Caroline Tomaidah Daka v Zambia National Commercial Bank (201 2) ZR 9 Vol. 3 13. Attorney General v John Tembo SCZ Judgment No. 1 of 2 012 14. Charles Kabwita v NFC African Mining 2011 I HK/ 1 64 15. Zambia Seed Company ltd v Chartered International (PVT) ltd SCZ Judgment No. 20 of 1999 16. Wilfred Weluzani Banda v Medical Council of Zambia and Attorney General Appeal No. 116 of 2012. Legislation referred to: Other authorities referred to: 1. Halsbury's Laws of England, 4 th edition, Vol. 40 page 375 2. International Labour Organisation Convention - No. 158 - Article 7 This is an appeal from a Judgment of the High Court, Industrial Relations Division delivered on 28 th December, 2 016. In the lower court the respondents herein had complained against the appellant who is their former employer and th ey claimed the following r eliefs: -J2- 1. An orde r or declaration that the termination of their employment for alleged poor p e rformance was wrongful, unlawful or unfair. 2. That they s hould be deemed to have been declared redundant and paid two months salary p er completed year of service. 3. In the alte rnative, damages for wrongful/ unlawful or unfair dismissal. 4. Payme nts for accrued leave days and days worked. 5. Interest and costs. The m aterial facts were that the complainants were all e mployed ~a·s ~ales repre ~ntatives on d~rse d ates on~ ermanent ancil_· .:_~'ll£. ~~stona~e-:.~'5ntt~~ts to ctefR,tr~~ -sell bri1'tf ()fl ~ alary ·ihl.s;~ : commission basis. In 2015 n ew conditions of service were introduced i.e. sales targets and credit limits for customers. It was difficult for the complainants to meet the targets due to issues such as load shedding, stiff competition, late s upply of goods etc. On 28th November, 2 01 5 all the complainants except the complainant witness 3 namely Sofia Chibuta were summarily dismissed from employment without any ch arge but on account of poor work performance for failure to meet the d aily sales targets. They were then requested to sign new contractsp~ ith ,_., new conditions if they wanted to continue in employment but they declined. Sofia Chibuta wh o was employed on 29th June, -J 3 - 2005 was merely stopped from working on 23rd June, 2015 for no reason. She was later given three cheques, two of which were in the sum of K8, 326.00 each and the other in the sum of Kl, 348.00. The total sum of the cheques was Kl8, 000.00. Only one cheque for K8, 326.00 was paid. The respondent stopped payment of the other two cheques on the ground that the matter was in cou rt. The payment to Sofia Chibuta was said to be discretional. It was not in dispute that the complainants apart from Sofia Chibuta were fired in a meeting, that took place on 30th November 20 15. According to the minutes of that meeting on ...,a-page 38 of the~ecord of appe~)· the Chairmarµ_was the Gener~- _:,-;~ ~an1:lger ~ wScf ;.;m'inded thi?,~akts :··r€pJ.'.'esen12tti'ie-s . that ~hcr©v'e_r~: :- had not met the set targets despite all warnings given would have their employment terminated. The appellants received the summary dismissal letters the same day. It was a lso in evidence that the respondent made calculations of the complainants dues for days worked plus leave days accrued . They refused the payment for leave days but days worked. The learned Trial Court found that the dismissal was wrongful because it was done contrary to clause 18 of the appellant's Disciplinary Code which provides for a warning. The lower court was of the view that there was no unlawful dismissal because there was no violation of any statutory provision in this case . The Court further found that there was no evidence to substantiate -J4- the claim for redundancy. It was also the lower court's finding that the respondents were entitled to damages for wrongful and unfair dismissal and they were each awarded 4 month's salary with interest at the Bank of Zambia rate with costs. The appellant has couched seven grounds of appeal as follows: 1. The Court below erred in law and fact when it found that the summary dismissal of the respondent's was wrongful relying on clause 18 of the respondent's Disciplinary Code. 2. The Court erred in law and fact when it held that the summary dismissal of the respondents was unfair relying on the finding that the appellant did not fallow the disciplinary ~-· procedur~_when dismissin~ .the respondent;__.. -~~~ ·~ . 3~ rhe Gbu~helQW eITOO-¢i~w and' faqJ :wb,~n it dwttrded...._ : - - - - - - damages for wrongful and unfair dismissal and/ or in the ~ -. ~- amounts exceeding the quantum specified at law without giving any reasons for departing from the same. 4. The Court below erred in law and fact when it ordered that the respondents be paid fo r days worked and leave days and that the same be assessed when the evidence on record shows the contrary. 5. The Court below erred in law and fact when it failed to address its mind to the fact that the 5th respondent instituted proceedings before it outside the prescribed time limit and without an order extending time. 6. The Court below erred in law and fact when it failed to consider payments made by the appellant to the 5 th -JS- complainant in awarding damages for wrongful and unfair dismissal. 7. The Court below erred in law and fact when it considered the evidence of the first respondent to be that of general application to all respondents when there was no application that the said be so. At the h earing of the appeal, Counsel for the a ppellant, Ms. Kaunda relied on the Heads of argument filed into Court on 27 th March, 2017. In support of ground 1, she submitted that the lower Court held that failure to meet d aily targets was synonymous with wilful lack of efficiency contrary to clause 18 of the r~~pondents Dis~linary Code atJd that accordiqg-to clause - is:,·th~enalty ;tYi'tiCIJreach i~ ~ i:iterr-warning. ·S h:eJ_•~f~ued to .: :,~ ·-:;-<- : .,,.._. clause 11 of the Disciplinary Code which provides th at the penalty for continued poor work performance was discharged. She argued th at the issue that arises is whether there was r eason to rely on the deemed synonym when clause 11 of the Code was clear. She submitted further that the finding by the lower Court that clause 18 of the Disciplinary Code is synonymous to poor performance must be set aside for being erron eous. She referred us to the case Minister of Home Affairs, the Att orney General v Lee Habas onda (Suing on behalf of the Southern African Centre for the Constructive Resolution of the Disputes (I ) wher ein the Supreme Court stated inter alia as follows: -J6- termination of employment and this was maintained in eviden ce by RW2. She added that unfair dismissal looks at the reasons for the termination and not the failur e to follow procedure. She stated that this was addressed in the letter to the labour officer copy of which is on page 14 1 of the record of appeal. In developing her arguments, she submitted that the respondents alleged that they were not give n a chance to be h eard as there was no disciplinary hearin g and as such , it was wrong to dismiss them. She pointed out that there was n o provision in the respondent's Disciplinary Code on whether hearing discip linary cases was mandatory. She therefore presumed that the lower Coul't-· may have be~ making a ge~ral a pplicatioJ:.»- ·of Section ~-. ,. 21J'A ~i:he-Em;lo} fuci~f Aet (ll. Sh:~·fu:tthe r-stat~d-~at::Section 16·:~,}{ ·~ .. -· of the same Act clearly states that part IV of the Act u n der which Section 26 falls, provides for oral contracts. This position was reinforced in th e case of Barclays Bank Zambia Pie v Zambia Union of Financial Institution and Allied Workers12l. On this issue, she con cluded that the lower Court should not have relied on the provisions of Section 26 of the Employment Act as it does not apply to written contracts. She went on to r efer u s to the case of National Breweries Limited v Phillip Mwenya13l wherein it was h eld inter alia as follows: "Where it is not in dispute that an employee has committed an offence for which t he appropriate .. JS- punishment is dismissal, but the employer dismisses him wi thout 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 he has no claim on that ground either for wrongful dismissal or for a declaration that the dismissal was a nullity." The court in the above case considered the case of Ward v Bradford Corporation!4 l wherein it was held as follows: "We must not force disciplinary bodies to become intramented in nets of legal procedure, so long as they ~ -. - .:_:, .. ~ ~ ct ,:i:. ..;- • - /'-. . fairlyv--=,, ~ll._.d •• •< •r "'-• ,;): supported." . . . justly, v,_ t~1r decisions ~ -should be •,:,."'~ •-!">!'( .-.r - •.:;." , -.:.- 1r •-.'( .-.r . ~-. · "-~,}! . ~ ..,., V· . In light of the aforementioned author ity, she s ubmitted that the appellant cann ot tolerate poor performance in sales at the expense of its finances. That it was an error on the part of the lower cou rt to fin d that there was failure on the part of the a ppellant to follow procedure when th ere was a wrong doing on the part of the respondents. As for ground three, sh e submitted that there is a difference b etween wrongful and u n fair dis missal. She argued that wrongful termination entails a failure to fo llow procedure and unfair dismissal look s at t h e reason s for the termination. She maintain ed that the lower Court was under a duty to evaluate the -J9- evidence on termination. She referred us to the case of Redrilza Limited v Abuid Nkazi (5l where the Supreme Court awarded damages for unfair dismissal on grounds that there was malice in terminating the employment. She in this regard submitted that there was absolutely no malice in the summary dismissal and nothing unfair. Therefore, she urged us to dismiss the lower court's finding of unfair dismissal and the award. She went on to argue that the normal measure of damages for wrongful termination of employment is the notice clause and the Supreme Cou rt held in the case of Chilanga Cement Pie v Kasote Singogo '61 as follows : > · > · ~ - ~ - "W·lle ~ w~rding,: aa~e~ for ~ 1~ ~ ~m ploynt_e,p t ,..,.p1e - common law remedy for wrongful termination of a -r -r - - contract of employment is period of Notice" In this regard, she argued that the learned trial Judge held that he had considered the length of time that each of the respondent's worked. She submitted that the legal position is that the considerations to be had are the availability of similar jobs and the manner of terminating employment. In support of this proposition she referred us to the case of Swarp Spinning Mills Pie v Chileshe and Others'71 the Supreme Court held as follows: -JlO- ~ -· · ~ " ¢ ' -:;-.:. "Senior managerial jobs cannot be e quated with those that are more modest and relative ly more abundant an d there fore more readily available" She added that each case must be determined on its own merits as stated in the Kasote Singogo case and that th ere was no reason for awarding damages in excess of the notice period provided in the contract of employment and that the award of four months must be set aside . The respondents were sales representatives wh o could easily find alternative jobs because the appellant was able to find other people who could m eet the targets that were set. ~ - - ~ - - ~ -- ~ - - -Und;r -~ -rhcin<ct 4, M;. ·?{~ui'f~a .submitl~--_t4-.'.".:lt _the re~ncl:~nts - were paid all th eir salaries upto 30th November, 2015 and there .~-<= ..,,. was no evidence to the contrary. The evidence on record shown on pages 216, 233 and 244 of the r ecord of appeal p er taining to CWl, CW2 and CW3 r espectively, confirms that their salaries were paid and this is as follows: "When we were termi nated, I only got the salary. I refused to collect my leave pay because it was less." "We were paid but refused to collect leave pay" "I was paid KB, 326.00 after other cheques were paid" As pointed out the respondents refused to collect their leave pay even through their advocates as shown on page 144 of the record -Jl 1- of app eal. Further , p age 145 of th e record of a ppeal clearly shows the rejection by the respondents through th eir advocates. Under ground five, she submitted that it is t rite law that a complaint must be filed within ninety d ays from the occurrence of the event givin g rise to the complaint. She adde d that th e lower Court did not a ddress t he responden t's submissions r eflec ted on pages 184 -185 of the r ecord of appeal. She in this regard made reference to the case of Lee Habasonda111 referred to in the earlier part of this Judgment . She stated that the complaint should not have been entertained as it was made out of time. ·""-- . J!,._ . . J!,._ . ~ - - -- Op groti.nd_;!ix,_sh~ ar~d jb~t _th~ 5th. J:,9mpJ~1::an t -W~.§. J?~<i ~h e sum of K8,326.00 after the summary dismissal. That the lower -r '!_r - Court was under a du ty to consider the p aymen t th a t was made to her in making any award to her. She in this regard referred us to the case of Swarp Spinning Mills Ltd 171 as follows: otherwise the argument that the package paid " already encompassed the normal measure of damages was quite valid". She went on to state that there was no n eed to award h e r more than what she h a d already r eceived because h er s alary was only Kl ,200.00 as seen on p age 87 of the record of a ppeal . -Jl2- With respect to ground seven, Miss Kaunda submitted that the lower Court was under a duty to distinguish the 1st Complainant from the other complainants as she was the only person who provided proof of the allegations pertaining to the operations. This is reflected on pages 104, 105, 106 of the r ecord of appeal. Further that all these parties had different customers and as such each respondent was to be treated differently. In her oral submissions, Ms Kaunda merely r eiterated the arguments in the skeleton arguments . . J-_· In respo~~e to ground J, Mr Tambul1:;.~ani, counsel ~~-r th e :;_-:,_~ ·-:;..-.. : __ r~spofRle~..-:S:U~m_ittect~:,tJle __ ev~denc.._~J)1;:~ec~rd sho~~t~~t_t~e respondents were summarily dismissed for alleged poor performance for failing to m eet sales targets as shown on pages 66 - 69 of the record of appeal. He argued that in actual fact the respondents were dismissed for_ alleged wilful lack of efficiency, or negligence as provided for in clause 18 of the Disciplinary Code. He stated that the testimony led by the r espondents was clear in the sense that none of the witnesses were given any written warning or suspended for three days without pay. It was counsel's furth er submission that th e appellant was merely attacking the lower Court's findings of fact. He went on to state that the lower Court found a s a fact that ther e was no evidence to support the a ppellant's assertion that -J13- the respondent's had been warned for prev10us offences and hence clause 11 was used to dismiss them. On the basis of the documentary evidence produced at trial, the respon dents were dismissed under clause 18 of the Disciplinary Code. He referred us to the case of Nkhata and four others v The Attorney General 181 wher e it was held as follows: "A trial judge sitting alone without a jury can only be reversed on fact when it is positively demonstrated to the appellate court that: (a) By reason of some non-direction or mis-direction or otherwise the Judge erred in accepting the evi dence which he did accept; or > · > · > · > · (-b) . i n ~ sgssing and ~vaJg:atin_g _!he a-11..i.d~e,_.the ] U:dg~:;-: -- has taken into account some matter which he ought not to have taken into account, or failed to take into account some matter which he ought to have taken into account; or (c) It unmistakably appears from the evidence itself, or from the unsatisfactory reasons given by the judge for accepting it, that he cannot have taken proper advantage of h is having seen and heard the witnesses; or (d) In so far as the judge has relied on manner and demeanour, there are other circumstances which indicate that the evidence of the witnesses which he accepted it is not credible , as for instance, where those -J14- fin dings of fa ct, the court below fell into err or by not taking proper advantage of seein g and h earing the witn esses. In h is view th e court's findings cannot be said to be perverse. On this issu e , h e also mad e referen ce to th e case of Wilson Masauso Zulu v Avondale Housing Project Limit ed. 1101 In a ddressin g gr ou n d two, h e su bmitted that the a ppellant did not a dher e to th e p rovisions of th e Disciplinary Code and as su ch , th e dis missal was wr on gfu l and unfair. He m a d e reference to Halsbury's Laws of England 4 th edition, Volume 40111 at page 37 5 which read s as follows: ~-- "When d~wing up disc!,plinary proce d_}.l_res, e mployer} _· -~-=- ¢' -:;.-.:. · -sho~·1tf~-1i~ i:egard ·:._l:-a :)he _requ ireinent s o f riat-1\{~~--: •r - ~ justice. This means that workers should be informed in advance of any disciplinary hearing of the allegations that are being made against them together with the supporting evidence and be given an opportunity of challenging allegations before decisions are reached. Workers should be given the right of appeal against any decisions taken. " He th er efor e asserted that th e r esp ondents testified that th ey h a d not been ch arged with poor per formance prior to their dismissal. There were a n u m ber of inconsistencies in th e evidence by RW 1 wh o during cr oss examination stated that CW3 Sophie Chibuta was called for a case h earing in May, 2015 and the letter of 12 th . J1 6 - September, 2015 shows that the case hearing was h eld on 23 rd June, 20 16. On this prem ise, h e submitted th at the inconsistencies in evidence just show that the respondents were not invited to any case hearing and hence they were not heard and / or given an opportunity to exculpate themselves. To this end, Counsel relied on the case of Zambia China Mulungushi Textiles (Joint Venture) Ltd v Gabriel Mwami (lll where it was held: "It is certainly desirable that an employee who will be affected by an adverse decision is given an opportunity to be heard" further, he referred to the case of Caroline Tomaidah Daka v -~ - , ~ -. . ;; <il{ .~ambia Ncrtioiµ.v Comme1"-cial...._Bank!12l . where it was held as . .,;,:;..;;: . :"'e...;, , ="' ~ . "":...;_ . ' "-. ,)=' -::,..-•: ~-. /'-. "-' -.}; /'- : ,, .. : - ..,... - , - ..,... - . - follows: "Disciplinary procedures are designed to ensure that the employee is given every opportunity to put right any conduct which is likely to be the subject of critical appraisal; to this extent the object of the procedures is corrective rather than punitive." He argued that in cross-examination, RWl could not provide any proof that the respondents were informed of their right to appeal and that he conceded in cross examination that there was no proof that they were informed. He pointed out that it is on this basis that the lower Court was on firm ground when it held that there was wrongful and unfair dismissal. The appellant's .. Jl 7 - argument pertaining to the prov1s10ns of Section 26 of the Employment Act are misconceived. He went on to state that there was no proof of the alleged offence of failing to meet sales targets. Further that the respondent on page 222 lines 14 to 17 admitted to having several motor vehicle breakdowns th at affected the sales and he submitted that the case of National Breweries v Phillip Mwenya 131 does not apply to this case. He referred to Attorney General v John Tembo 1131 where it was held that when there is a b latant disregard of the conditions of service and the rules of natural justice, then a holding of wrongful dismissal from employment should be ~ --upheld. ...c!"',;,c ...,,- ~ - - ._.,._..,~ ·-~ : ...,,- - V• , ~ -- -~-;,¢" .• !"',;,c ...,,- '¥• ~ -.... -.. ~ ' ~ -- V • ...... .., ,i:: "-· , ,~ ...,,- ~ - - ._;_:, ,){ -•~ ...,,- - V ._.._ In responding to ground three, he reiterated his submissions under ground one and two and further submitted that the evidence on record clearly shows that the failure to meet sales targets was as a result of load shedding that affected the sale of goods and the continuous breakdown of the machines. This is a proper case to depart from the normal measure of damages which is the notice period because looking at the circumstances of the case, the dismissal was done in a traumatic fashion and in a malicious manner. For this proposition, he cited a number of authorities, including Swarp Spinning Mills v Sebastian Chileshe & 30 others. 171 .. Jl8- borne by the appellant for the amendment of the proceedin gs. On this prop osition, he referred us to th e case of Charles Kabwita v NFC Africa Mining 1141 which we m u st state from the outset that it does not bind us as it is a High Court decision . He also relied on the case of Zambia Seed Company Limited and Chartered International (PVT) Limited 1151 wherein it was held that: "By law the only way to challenge a Judgment by consent would be to start an action specifically to challenge that consent judgment." Therefore, it was submitted that the issue of instituting _ proc~dings after the.a-prescribed perj(>d was settled )?Y way of ~-. cJ~·fe~ order ~s ·:;l¥e~---from -p;ge-:-;g;-; @<6 .of _the -~pgt~rh~ntary :;_-,,¢ .. ·:'It< . ..;- bundle and that the appellant is bound accordingly as the order still stands. Under ground six, it was argued on behalf of the respondents that the evidence of RW 1 shown on page 253 of the record of appeal under lines 10 - 15 clearly confirms the lower Courts finding that there was no error in law or fact by awardin g the 5 th respondent damages of 4 month 's salary as th ere was no evidence that the payment made to her was for damages for wrongfu l and unfair dismissal. He relied on the case of Wilfred Weluzani Banda v Medical Council of Zambia and Attorney General 1161 wherein it was held as follows : .. J20- "In the process of assessing the damages to award the appellant, the trial court had regard to the fact that the appellant was already paid his gratuity and terminal benefits by the 1st respondent. It, therefore, considered it fit to grant the appellant four months net salary with interest, as damages for unlawful termination of employment. We are satisfied that the appellant was adequately compensated by the damages which were awarded to him, in addition to the dues which were paid by his employer" It was on this basis that the lower Court was justified in ~ aw~1ng the 5 th resr,'ondent damag~-for four montb,is salary in ~'a-ctrtffi~ -t6 the ~{;-~fet~riary pa; rif~fft :~cte-to h·er? '~ -:;:< ·. - .. :_;,_~ ·;:< : .,,>._· On ground seven, it was argued that the amended Affidavit in Support of Notice of Complaint shown on page 62 of th e record clearly indicates th at the first respondent deposed to the said affidavit on her own behalf and on behalf of all the other r espon dents alluding all the challenges that they faced in executing th eir duties. That it was th erefore erroneous for the appellant to argue t h at the first respondent only gave evidence for herself. In addition, he submitted that there were two other respondents wh ose evidence was similar to that of the first respondent. Ther e -J21 - is no rule of law to the effect that when there is more than one respondent to an action then they all have to testify before Court as this would lead to very long trials . It is therefore frivolous and unmeritorious for the appellant to argue that there was no general application of the evidence. Further that, the appellant's own evidence which was given orally by RW2 Benson Longwe, clearly outlines the challenges and circumstances that the respondent's faced . He referred us to page 262 of the record of appeal. He concluded by submitting that the circumstances that the learned trial Judge was referring to encompass all the evidence received before Court which revealed tha~-· the respond~ts were "f~Tio~~i:he c~rf~t :~1sciplinary·pt36~t1-re. . sun:miarily dismis~d ~ ,:::~.,: -:;»: _. without In his oral submissions, Mr. Tambulukani more or less repeated the arguments in the skeleton arguments. He added just one aspect that the issue of the 5 th respondent being added as party to the proceedings was never raised by the appellant in the Court below. It was only raised in the submissions, after the hearing, as shown on page 184 of the record of appeal. Therefore, it was his submission that the issue was not properly b efore us because it was not raised in the Court below. He finally prayed that the appeal be dismissed with costs. -J22- We have looked at the record of appeal and the written and oral arguments made by both advocates. Under ground 1, the appellant is of the view that the lower Court misdirected itself by considering clause 18 instead of clause 11 of the Disciplinary Code which provides that for poor work performance the p enalty upon first breach is a discharge. We accept the submissions made by learned counsel for the appellant on this issue. The learned trial judge did misdirect himself because the evidence of RW 1 in re-examination as seen on page 255 of the record of appeal was to the effect that clause 18 of the disciplinary code was not used to charge the _ ..... .:;. cocl'plaipan ts but et-a.use 11. We ~ erefore set asi,,le the lower ~ ~ ... ~ court's findings that-failure to m ee'f· Glaily sales targets;was. said tO"-;¢" -,:::.-.. . _ -.:r..",)! ... ~ .;.>_. ..... .. '";' • ..... _ ..... l(_ ...... ;_ .... . - · ... , . ... r, ~ ,.. .. .~ - b e synonymous with wilful lack of efficiency contrary to clause 18 of respondent's disciplinary code. However , upon further consideration, we find that even though clause 11 was the one that was invoked by the appellant, the dismissals were unfair and wrongful because the appellant did not charge the respondents with the offence for which they wer e dismissed or give them a chance to be heard. In our view the meeting that took place on 30th November, 2015 cannot be said to be a disciplinary h earing because it was a routine administrative meeting at which the r espondents were in fact not given an opportunity to say anything. This is fortified by the fact that the minutes of that meeting on page 129 of the record shows -J23- that the chairman addressed the respondents saying inter alia that sales representatives wh o had not met th e targets set despite all warnings would have their employment terminated for poor work performance. As earlier stated, the dismissal letters were issued to most of the appellants on the same day. As rightly submitted by counsel for th e appellant there was no reason to ignore a clause in the disciplinary code and apply a presumed synon ym that is not provided for in the code. It is therefor e clear that the trial judge did not rely on Section 26 of th e Employment Act to r each his d ecision. As stated in Barclays Bank Zambia Pie v. Zambia ~ -- Union of FAnancial Institution and Allied_>Vorkers 121 Sect_1i!n 26 -:.~~ ~< . -A & B ·ef'Jfn~ .. E~loy~eb~ A£f ~p.plies· o·n}y t~"oral con"tra=ots;,:rh½. warnings given to the respondents earlier cannot be deemed to be charges. Coming to ground two, it is trite law that unfair dismissal relates to the reasons for termination and not failure to follow laid down procedures. On the other hand wrongful dismissal relates to failure to follow laid down disciplinary procedures. The lower court rightly found that the rules of natural justice were breached. Since there was no hearing there was no substraction of facts upon which the dismissals were based. The respondent therefore acted unfairly and unjustly and their decisions cannot be supported. The case of Ward v. Bradford Corporation (4 l applies . The case of National Breweries Ltd v. Phillip .. J24- of disciplinary cases to be unreasonable and untenable. The second ground therefore has no merit and it is dismissed. As regards the third ground of appeal, we have no difficulty in finding that this is a case suitable for an award of damages beyond the common law damages as was held in the Chilanga Cement Plc v Kasote Singogo 161 and Swarp Spinning Mills Plc v . Chileshe and Others 171. The lower court did take into account the circumstances of the case. The contracts clearly provided for a month's notice of termination under clause 16 and as such, the award of three month's salaries extra was justified considering the fact that there was evidence to the effect that the dismissals ~-· and discl+.arge were ab.l..upt and mo~ - likely cause. J- the -: ~ :;~ : - re-sp~r}·d~~--- ~ental ~ d~~e:~:~f. · '. J'her~fo?&t~'S · ground -~o;tac~ merit. With r espect to ground four, we shall allow the appeal in so far as re payment for d ays worked is con cerned. As rightly pointed out by the appellant's advocate the finding that they were not paid for d ays worked was not supported by evidence. Following the case of Wilson Masauso Zulu1101 we hereby upset that finding. It is only the pay for accrued leave days that should be assessed. Since the respondents were initially offered payment for accrued leave days which they unjustifiably rejected, they are not entitled to interest on the amount found due under this head. -J26-