Consolidated Tyre Services Limited v Lawrence Hamachesa (APPEAL NO. 109/2004) [2006] ZMSC 38 (14 March 2006)

IN THE SUPREME COURT FOR ZAMBIA - APPEAL NO. 109 / 2004 HOLDEN AT LUSAKA (CIVIL JURISDICTION] BETWEEN: Consolidated Tyre Services Limited - Appellant And Lawrence Hamachesa ..... Respondent Coram: Lewanika, DCJ, Mambilima and Silomba, JJS, on the 7 th September, 2004 and 14th March 2006. For the Appellant - , Mrs. F. M. Chisanga of FMC & Associates. For the Respondent - In Person. JUDGMENT Mambilima JS, delivered the Judgment of the Court. ' ' Authorities referred to: (1) Zambia Consolidated Copper Mines Limited vs Charles Funga SCZ Appeal No. 88 of 1997 J4. (2) Rainward Mubanga vs Zambia Tanzania Road Services Ltd (1987) ZR 43, Legislation referred to: (1) The Employment Act, Cap 268 of the Laws of Zambia. This is an appeal from the decision of the Industrial Relations Court, sitting at N?ola, in which ~he Responde,nt was reinstated in his former post of Factory Foreman with the Appellant, with effect from the date of his dismissal. After noting the passage of time from the date of dismissal, the Court ordered that the Respondent be deemed to have been retired in accordance with the Company Conditions of Service and ordered that he be paid salary arrears up to the date of the Judgment. According to the pleadings and evidence on record, the Respondent filed a complaint in the Industrial Relations Court alleging that he was wrongfully dismissed. He sought an Order of reinstatement and a declaration that his dismissal was null and void. The background to this case is that the Respondent was in the employment of the Appellant from 1975 up to 1998. He rose through the ranks to the post of Production Foreman. His testimony in the lower Court was that from 23rd July 1998 up to 4th August 1998, he was sent on forced leave because there was not much work at the I • • i factory. He was instructed to handover the factory and equipment to a Mr. J. Kibila. He told the Court below that there was no formal written handover to Mr. Kibila According to the evidence on record however, there was an informal handover in which the Respondent took Mr. Kibila around and showed him the items in the factory. The Respondent testified that upon his return, he went to check the items left in the custody of Mr. Kibila in the rubber factory. They discovered that some items and papers which were left in the factory were not there. These included a wall clock, extruder range, grease gun and scale weights. They reported their findings to a Mr. Phiri, who tasked the Respondent to investigate the matter and find the culprits. A meeting was held on 26th August 1998 at which the matter was discussed. According to the Respondent, Mr. Kibila, who had been acting as Factory Foreman in his absence, complained that he had not been working properly because he was under pressure from his boss who had given him more responsibility. Mr. Kibila wrote a report on 27th August 1998 directed to M;. Phiri explaining this position. On 1st September 1998, the Respondent was summarily dismissed on a charge of Gross Negligence of duty. It was alleged that he had neglected his duty resulting into the loss of the tools. These tools allegedly miss~d while the Respondent was on forced leave. The Respondent was also accused of not formerly reporting the loss to his boss. His appeal against the dismissal was rejected. The Appellant's position in the lower Court, was that the Respondent was not wrongfully dismissed. The Appellant contended ' • ~ j through the evidence of its Assistant Production Manager, Mr. Kalengo Phiri, that the Respondent had failed to prove that the items went missing during the period that he was on forced leave since he had not formally handed over to Mr. Jacob Kibila. Mr. Phiri testified that for purposes of accountability, it was a requirement that whenever someone ~as proceeding on leave, there should be a written handover. Mr. Phiri further told the Court below that he wrote to the Respondent and asked him to account for the missing items but instead of replying to him, the Respondent submitted statements from his juniors. He went on to state that from this reaction, he deduced that the Respondent had grossly neglected his work. He charged him with gross negligence, an offence for which he was later summarily dismissed. He appealed against the dismissal. In a letter dated 23rd March, 1999 dismissing the appeal, the reason given for the dismissal was that the Respondent had refused to cooperate in the investigations aimed at finding the culprits responsible for the missing items in the rubber factory. ' After considering the evidence on record, the Court below was of the view that the main offence committed by the Respondent was his failure to formally handover the factory to Jacob Kibila when he was sent on forced leave. It found no evidence to support the charge of negligence but was of the view that the evidence revealed an offence of refusal to obey lawful instructions, in that, there were allegations that the Respondent refused to investigate the missing of the items and to charge his subordinate, Jacob Kibila. The Court went further to state that the Respondent had been wrongly charged with an offence which • r I had no relevance to his conduct or work performance. It was of the view that consequently, he could not fashion out a meaningful defence. The Court also found that the Respondent was not afforded a chance to be heard on a charge relevant to his conduct. It stated that where an employer charges an employee with the offence of gross ' negligence of duty instead of failure to obey lawful instructions, the employer has materially misled the employee as to amount to denying him an opportunity to formulate a defence and that employee cannot be said to have been properly heard. The Court was also of the view that the Respondent had very little time in which to handover to Jacob Kibila. There was evidence before it, that the Respondent was placed on forced leave at 16.30 hours, after which he was expected to handover by 17.00 hours. Due ' to the limited time, he only took Kibila around the factory without writing down the items which were handed over. The Court also observed that since handing over was a two way process, it was wrong to only charge the 'Respondent leaving Kibila scot free in that upon the Respondent's return from forced leave, Kibila did not also formally handover to him. The Court was satisfied, on the totality of the evidence before it, that the Respondent was charged with a wrong charge and consequently could ~ot be said to have been given a chance to defend himself. The Court found that the Appellant contravened Section 26A of the Employment Act. OJ This Section provides: ''S.26A An employer shall not terminate the services of an employee on grounds related to the conduct or performance of an employee without affording the employee an opportunity to be heard on the charges laid against him. " The Court was satisfied that the Respondent had proved his case on a balance of probabilities and reinstated him in his former post from the date df dismissal. In view of the time that had elapsed since the date of dismissal, the Court ordered that the Respondent be deemed to have been retired in accordance with his conditions of service and be paid salary arrears up to the date of judgment. The Appellant filed a memorandum of appeal containing three grounds. These are that:- "1. The Honourable Deputy Chairperson and the members of the Court erred in law in holding that the complainant was not grossly negligent in performing his duties leading to loss when the evidence shows that he was grossly negligent. 2. The ~ourt fur~her e~red in law and in fact by holding that the complainant was not given an opportunity to be heard on the charges levelled against him and charges which ought to have been preferred when the evidence shows that he was given an opportunity to be heard on the charges which related to his work performance as a foreman of the factory. 3. The Court erred in law by ordering that the complainant be reinstated from the date of his dismissal and be retired as w~ll as be paid salary arrears up to the date of the Judgment, that is the 26th January 2004 when the complainant should not have been reinstated but instead been awarded the usual damages payable on termination of employment in this instance." In her submissions in support of the appeal, the learned Counsel for the Appellant, Mrs. Chisanga,, relied entirely on her written heads of argument filed in Court. In support of the first ground of appeal, Counsel referred us to page 40, line 3, of the record of appeal. This is a portion of the minutes of the Appellant's Disciplinary Committee, which sat to review the case of gross negligence raised against the Respondent. Counsel submitted that from this evidence, the Respondent knew that his office, where some ' of the items which went missing were kept, was not lockable. According to Counsel, the Respondent did not make any effort to buy a lock to secure his office. Submitting 'in support of the second ground of appeal, Mrs. Chisanga stated that the Respondent's mind was brought to bear on the allegations that he disobeyed his supervisor's directive, to take action on the missing items. Counsel again referred us to the minutes of the Disciplinary Committee appearing on page 39 of the record of appeal and the pr,oceedings of the Respondent's appeal hearing appearing from page 29 to 31. She submitted that these minutes show the Respondent's explanation of what he did upon discovering that the items were missing. She went on to state that the Respondent was taken to task over his failure to obey his supervisor's directive to take action on the missing items. Counsel argued that the Respondent was heard and there was no unfairness m the way his case was handled. On the last ground of appeal, it was Counsel's submission that the Respondent should not have been reinstated but instead could have been awarded the usual damages payable on termination of employment. She went on to state that the formula used by the Court to award compensation, completely ignored the principles of mitigation of damages, making the award excessive and unjust. According to Counsel, the Respondent should not have been reinstated because the Court found him guilty of some wrong doing. For this submission, she referred us to the case of Zambia Consolidated Copper Mines Limited vs Charles FungaJ 1l Mrs. Chisanga further submitted that the Court below erred to order the Appellant to pay the Respondent salary arrears, from the date of dismissal in 1998 to the date of Judgment in 2004, ignoring even the Respond€nt's duty to mitigate damages. She stated that no evidence was led to show that the Respondent had suffered any loss to entitle him to salary arrears of more than five years. She submitted that this award was excessive and unjust. She argued that the Appellant could have been compensated by an award of 12 months salary or alternatively, reinstated and deemed to have been retired from the date of dismissal. She urged us to award 12 months salary as compensation, should we uphold the lower Court's Judgment of unfair dismissal. In response to the submissions on behalf of the Appellant, the Respondent, who was appearing in person, submitted that the lower Court was right to deliver the Judgment in his favour. We have considered the evidence on record, the judgement of the Court below and the submissions by Counsel. On the first ground of appeal, it is not in dispute that the Respondent was charged with a case of Gross Negligence of Duty. According to the Complaint Form appearing on page 25 of the record of appeal, the particulars of this case were that the Respondent " ... grossly neglected his duty by ' ' allowing tools, i.e. scale weights, wall clock, greasing gun extruder wrench and a tin of enerpar oil to go missing from the factory without formerly reporting the losses ... " It was Respondent's evidence in the Court below that the tools went missing while he was placed on forced leave. It was also his evidence that he was placed on forced leave around 16.30 hours, allowing him insufficient time to handover to Mr. Jacob Kibila. This evidence was not seriously challenged by the Appellant. Mr. Kalengo, Phiri, the Aprellant's witn~ss in the Court below testified that he wrote a memo to the Respondent after the Respondent's return from forced leave asking him to account for the items or find out from his juniors who lost them or how they went m1ssmg. According to this witness, the Respondent instead submitted statements from his juniors. He told the Court below that he concluded, from the Respondent's reaction that the Respondent was ' grossly negligent, as he did not address the issues requested of him. The Court below accepted the evidence of the Respondent that the items missed while he was on forced leave. A key witness as to the period when the items would have gone missing was Mr. Jacob Kibila. He was not called to testify although he was available. For as long as the evidence of the Respondent that the items went missing while he was on forced leave is not discredited, we cannot fault the Court below for having accepted his evidence. The Court correctly observed that negligence denotes failure to exercise reasonable care, skill and diligence in the performance of one's duties. If the Respondent was not at base when the items went missing, he was not in a position to exercise such care, skill and diligence. The first ground of appeal cannot therefore succeed. The second ground of appeal raises issue with the finding of the Court that the Respondent was not given a chance to be heard. It is common cause that the Respondent was alleged to have been negligent in that he allowed tools to go missing from the factory. A hearing was conducted on this charge. According to the letter of dismissal, the Respondent was given a chance at this hearing, to exculpate himself, against ,the c4arge of negl,igence. He was found guilty of gross negligence and consequently dismissed. The learned Counsel for the Appellant has endeavoured, in her submissions before us, to show that notwithstanding the charge of negligence, the Respondent's mind was brought to bear on the allegations that he disobeyed his supervisors' directive, to take action on the m1ssmg items . We have visited the minutes of the Respondent's disciplinary hearing appearing on the record. In these minutes, the Respondent ' ' was explaining himself with regard to the charge of negligence. We do not get an impression from the minutes, that the Appellant directed its case against the Respondent to another charge of refusing to obey lawful instructions. Clearly, the focus of the whole hearing was that the named tools were lost through the negligence of the Respondent, a charge which on the evidence adduced in the lower Court, was found to have been unproved. It cannot therefore be argued that the Respondent had an opportunity to exculpate himself against allegations of disobeying lawful instructions when no such charge was made out against, him. We find no merit in the second ground of appeal. The Respondent proved his case on a preponderance of probabilities. The third ground of appeal is directed at the remedy awarded to the Respondent upon the Court finding that his dismissal was null and void. It is common cause that the Respondent was dismissed on pt September 1998. The Judgement of the Court was delivered on 26th January, 2004. The Court ordered the reinstatement of the Respondent from the date of his dismissal but due to the time which had elapsed since the dismissal, it ordered that the Respondent be deemed to have been retired in accordance with his Conditions of Service and to be paid salary arrears up to the date of judgment. In our view, the Order that the Respondent be paid salary arrears up to the date of judgment effectively reinstated the Respondent into his former post on the date of judgment. It is trite law that except in exceptional cases, a contract of employment will not be specifically enforced. The Court has the discretion to determine in each particular case, whether the relief of reinstatement is appropriate. We restated this principle in the case of Rainward Mubanga vs Zambia Tanzania Road Services2 when we said that "whilst at common law a contract of personal service will not be the subject of an Order for specific performance... any purported termination of employment in breach of regulations is ineffective. The results of the ineffectuality is a matter for the trial Court to decide". In this case, the Court made its decision, that the Respondent's dismissal was null and void, more than five yyars after the dismissal. ' . . This passage of time militates against the Order of reinstatement. The Court below was alive to this consideration and hence its decision not to send the Respondent back to work. In our view, the Order of reinstatement was inappropriate in the circumstances of this case. The Appellant should have been deemed to have been retired in accordance with his Conditions of Service from the date of dismissal. Consequently, he is not entitled to any salary arrears from the date of dismissal up to the date of judgment, save for any arrears which may have accrued to him before the date of dismissal. The third ground of' appeal therefore succeeds. To this extent only this appeal succeeds. For avoidance of doubt, we uphold the decision of the Court below that the Respondent proved his case that his dismissal was null .. , l, and void. We Order that the Respondent should be d eemed to have been retired in accordance with hi s Conditions of Service on the dale of dismissal. We set aside the Order that the Respon dent be paid salary arrea rs from the date of dismissal up to the elate of judgment. He is entitled to salary arrears if any, which may have accrued to him before the elate of the dismissal. In the circumstances of this case, we make no Order on costs. l D. M. Lewanika DEPUTY CHIEF JUSTICE ~ - -~ ,-..,:, -----~--------------------------- I. C. Mambiliff1a SUPREME COURT JUDGE ftl\, - - \ ---------------------------- -- ~ S. S. Silomba SUPREME COURT JUDGE 13