Colgate Palmolive Zambia Inc v Daniel Simukonda (APPEAL NO. 106/2005) [2006] ZMSC 37 (6 June 2006)

IN THE SUPREME COURT FOR ZAMBIA HOLDEN AT NDOLA (Civil Jurisdiction) APPEAL NO. 106/2005 BETWEEN: COLGATE PALMOLIVE ZAMBIA INC. AND DANIEL SIMUKONDA APPELLANT RESPONDENT Coram: CHIBESAKUNDA, JS, MUSHABATI, JS, AND MUNTHALI AG. JS on 7 th September, 2005 and 6th June, 2006. For the Appellant: For the Respondent: Mr. M. Nyirenda of Messrs. Kafunda & Company. Mr. K. Msoni, of Messrs. J. B. Sakala & Comnpany. Judge S . S. K. Munthali, Ag. JS. Delivered the dissenting Judgment of the Court. JUDGMENT CASES REFERRED TO: 1. ZAMBIA CONSOLIDATED COPPER MINES LIMITED V EDDIE ZULU, 1999 S. J. Z. 47 2. JOSEPH CHINTOMFWA V NDOLA LIME COMPANY LIMITED S. J. Z. While agreeing with the majority decision to dismiss the appeal and to allow the cross appeal, I with very great respect, express my dissent on the quantum of damages awarded. The respondent has been awarded 2 years salary plus full tenninal benefits. This is clearly wrong in law going by the cases this court has decided regarding the quantum of damages in wrongful dismissal cases. The normal measure of damages will usually relate to the applicable contractual length of notice or the notional reasonable notice, where the contract is silent. This is departed from where the circumstapces and justice of the case so demand. The status of the employee in the organization is a critical factor in the assessment of damages. In the case ZAMBIA CONSOLIDATED COPPER MINES LIMITED V EDDIE ZULU1 , a middle management police officer who was ·wrongfully dismissed was awarded 12 months and salary arrears, leave pay, allowances and gratuity. In the case of JOSEPHY CHINTOMFWA V NDOLA LIME COMPANY LIMITED2 , the appellant who was an engineering clerk was wrongfully retired. The court having found that future job prospects were almost nil, awarded him 2 years salary plus other perquisites. Perquisites are those things to which someone has a special right because of their social position e.g. allowances. They are payable only if one is entitled to them. Mr. Msoni, learned counsel for the respondent, submitted that the Kl0,000,000 awarded was inadequate. l-!e asked the court to award the respondent 24 months salary. He even submitted that a 6 months: salary award would be higher than Kl0,000,000. The respondent's salary being Kl,800,000 per month at the time of dismissal, a 6 months salary award would definitely be slightly higher than Kl0,000,000. The respondent was a plant engineer. He was clearly above 'middle management level. · The circumstances of his dismissal were not riormal. His job prospects on the labour market are almost nil. The Kl0,000,000 award is quashed. I would award him damages equivalent to 2 years salary plus perquisites. I refuse to award terminal benefits in addition to damages, as this would lead to unjust enrichment of the respondent and such an award would be contrary to precedent. On interest, I would award interest at the short-term ::deposit rate: from the issue of writ to date of judgment. Thereafter at the • prevailing rate as determined, by the Bank of Zambia. Costs to be awardeq to the respondent to be taxed in default of agr¢erhent. .< S. S. K. Mu:u.thali ACTING SUPREME. COURT JUDGE