Nyasulu and Anor v Zamcapitol Enterprises (Appeal 93 of 2010) [2014] ZMSC 249 (17 November 2014)

IN THE SUPREME COURT OF ZAMBIA APPEAL NO. 93 OF 2010 HOLDEN AT NDOLA (Civil Jurisdiction) BETWEEN: CHRISTOPHER NYASULU Ist APPELLANT ABONY CHOONGO MUNSAKA 2NQAPPELLANT AND ZAMCAPITOL ENTERPRISES RESPONDENT CORAM: PHIRI, WANKI, AND KAOMA, JJS On 3rd September, 2014 and 17th November, 2014 For the Appellant: Mr. M. L. Mukande of Messrs. M. L. Mukande and Company For the Respondent: Mr. J. Kalokoni of Messrs. K. M Associates JUDGMENT WANKI, JS, delivered the Judgment of the Court. CASES REFERRED TO: 1. 2. 3. Contract Haulage Limited -Vs- Mumbuwa Kamayoyo (1982) ZR 13 (SC). Zambia China Mulungushi Textiles (Joint Venture) Limited -Vs- Gabriel Mwami (2004) ZR 244 (SC). Anderson Kambela Mazoka and Others -Vs- Levy Patrick Mwanawasa and Others (2005) ZR 40. 4. Wilson Masauso Zulu -Vs- Avondale Housing Project Limited (1982) ZR 172 (SC). J2 The appellants appealed against the trial Court’s judgment in which the trial Judge dismissed the appellants’ claims and held that the respondent was entitled to dismiss the appellants and rightly did so. The brief facts before the trial Court were that the appellants were employed by the respondent in management positions. In the course of their employment, other employees of the respondent petitioned against the appellants raising several issues against them. Acting on the petition the respondent suspended the appellants and constituted an investigations team to inquire into the allegations raised by the petitioners. The appellants were directed to come and answer the petition and allegations raised against them by the other employees. The appellants refused to comply with the directive and the respondent consequently dismissed them. The appellants then sued the respondent challenging the dismissal before the High Court. The trial Court found that the respondent rightly dismissed the appellants. The appellants were dissatisfied with the trial J3 Court’s judgment and now appeal to this Court. The appellants advanced the following grounds of appeal: - 1. 2. 3. 4. The trial Judge misdirected himself in fact and in law when he held that “had the appellants appeared before the Disciplinary Committee with the Audit Report submitted or tendered in Court the Board would have inevitably dismissed them and that even if they were dismissed for insubordination under Clause 7, they would have been dismissed based on the Audit Report”. The trial Judge misdirected himself in fact and in law when he held that the appellants refused to appear before the Audit Committee contrary to the appellants’ testimony. That the trial Judge misdirected himself in law and in fact when he ignored the blatant disregard of the appellants’ Conditions of Service by the respondent during the disciplinary process. That the trial Judge misdirected himself in law and in fact when he ignored the fact that there was no offence of gross indiscipline in the appellants’ Conditions of Service and that the offence of insubordination carried only a 30 day suspension on first breach. The gist of the argument in support of the above grounds is that in employment cases, the role of the Court is limited to examining the power to dismiss and if that power was exercised properly. It is not for the Judge to take into consideration other matters that do not form part of the reasons for the dismissal. It was contended that the appellants were charged with offences extracted from the Disciplinary Code thus their employment was J4 subject to that Code. It was argued further that the Code was part and parcel of the contract of employment and the Court should have taken this fact into account in that the appellants were dismissed partly on non-existent offence fabricated by the employer. The brief response to the grounds is that the dismissal of the appellants was not within the context envisaged by the appellants. The appellants were dismissed for disobedience, insubordination and gross indiscipline. The appellants’ contracts of employment stipulated the punishment for the wrongs they committed. It was argued that the trial Court made findings of fact which were supported by the evidence and that the lower Court’s judgment was based on the reasons contained in the appellants’ letters of dismissal. We have considered the judgment, the record of proceedings, the grounds of appeal and the submissions made by Counsel on both sides. We are indebted to Counsel for the submissions made herein. We found the said submissions helpful. It is our considered view that this appeal calls for us to determine whether J5 the dismissal of the appellants was justified and whether the trial Court rightly arrived at its decision. One of the ways a contract of employment can come to an end is by dismissal. This is a summary termination of employment by the employer for a particular reason or for none at all. At common law an employer may dismiss an employee summarily if he has sufficient cause to do so. The said summary dismissal could be on grounds of moral misconduct (pecuniary or otherwise), willful disobedience or habitual neglect. To this extent in CONTRACT HAULAGE LIMITED -VS- MUMBUWA KAMAYOYO I1) we held that:- “In a pure master and servant relationship there cannot be specific performance of contract of service and the master can terminate the contract with his servant at any time and for any reason or for none; if he does so in a manner not warranted by the contract he must pay damages for breach of contract.” Although the common law position may still apply in most jurisdictions there has been a move towards a contractual approach. In the contractual approach dismissal is to be considered in some contractual light. Every case must be viewed on its own facts to determine whether the conduct in question was grave enough to warrant the dismissal. In ZAMBIA CHINA J6 MULUNGUSHI TEXTILES (JOINT VENTURE) LIMITED -VS- GABRIEL MW AMI (2) we had this to say:- “The old fashioned language of master and servant is out of place in many of the employment situations. In many cases, the terms governing employment, indicate that there is a right to natural justice and a right not to be thrown out of work, except on some rational grounds; and some explicable basis which is reasonable in the circumstances. The general principle that a contract of service cannot be specifically enforced is not without exceptions. The Employment Act and a number of authorities reflect a changing trend especially when it comes to public companies.” It is trite that there are circumstances in which the employer may be justified in dismissing the employee summarily. The employer will be justified to dismiss the employee if the employee has fundamentally breached the contract of employment or committed an act of gross misconduct. Other recognized factors which may warrant summary dismissal include willful refusal to obey lawful and reasonable instructions, dishonesty and gross negligence. Ground one suggests that the trial Court based its decision confirming the appellants’ dismissal on reasons other than those indicated in the letters of dismissal. We examined the portion of the trial Court’s judgment subject of this ground. Our construction of that part of the judgment is that the lower Court J7 did not interpose itself as an Appellate Court. The lower Court confirmed the appellants’ dismissal on account of the reasons cited by their employer and further observed that the appellants would have been dismissed any way for the contents of the Audit Report if not for the reasons cited by the employer. It is our firm view that the Court’s observation was not the reason for confirming the appellants’ dismissal. It is clear from the evidence which was before the trial Court that the appellants were dismissed in accordance with the terms of their contracts. We examined the said contracts and found that the appellants’ contracts under Clause 7 provided for factors warranting the respondent to dismiss the appellants. One of the factors so stipulated is disobedience to the Board’s directives. The contracts did not however, provide for a procedure to be followed before dismissing the appellants. It is also clear from the evidence that the appellants were not charged for any offence. It is our view that in the circumstances of this case, the rules of natural justice were not set in motion. It is our inescapable conclusion that the respondent was justified in dismissing the appellants. J8 In respect of the allegation that the trial court based its judgment on the Audit Report, we are of the firm view that the trial Court was entitled to consider the Audit Report as the same had become part of the evidence before it for consideration. The trial Court cannot be blamed for considering the report and making reference to it. On this point we call in aid what we said in ANDERSON KAMBELA MAZOKA AND OTHERS -VS- LEVY • PATRICK MWANAWASA AND OTHERS <3) In considering the said case we said among other things that:- “In a case where any matter not pleaded is let in evidence, and not objected to by the other side, the Court is not and should not be precluded from considering it. The resolution of the issue will depend on the weight the Court will attach to the evidence of unpleaded issues.” We cannot agree with the arguments advanced by the appellant under ground one of this appeal. We opine that the authorities cited pursuant to the said arguments were misplaced. There is no merit in ground one and we dismiss it. In respect of ground two, it is our deduction that this ground of appeal questioned the finding of fact. The appellants invited us to tamper with the finding in issue. It is our view that the said finding is supported by the evidence and we cannot J9 tamper with it. We are fortified by our decision in WILSON MASAUSO ZULU -VS- AVONDALE HOUSING PROJECT LIMITED <4) where we said that:- “The Appellate Court will only reverse findings of fact made by a trial Court if it is satisfied that the findings in question were either perverse or made in the absence of any relevant evidence or upon misapprehension of the facts.” As regards ground three, it is our considered view that the appellants’ conditions of service were not followed because the appellants were never charged under the Disciplinary Code pursuant to the investigations which were instituted by the respondent. The company set up the Audit team to investigate the allegations by fellow workers against the appellants, but when they were summoned, the latter refused to appear before the Audit team thus their dismissal under Clause 7 of their contracts. Therefore, the disciplinary process envisaged by the appellants’ conditions of service was never set in motion. Grounds two and three of this appeal, lack merit and are dismissed accordingly. J10 As far as ground four is concerned, we opine that it cannot stand in light of what we have said in respect of grounds one, two and three. Our conclusion is that this ground has no merit and it is dismissed. It is clear from evidence that the appellants disobeyed the respondent’s directives. Therefore, the respondent was justified in dismissing the appellant and the trial Court rightly arrived at its decision. There is no merit in this appeal and it is dismissed accordingly. SUPREME COURT JUDGE. R7M. C. Kaoma, SUPREME COURT JUDGE.