Copperbelt Bottling Company Limited v Phineas Fombe (SCZ APPEAL NO. 37 OF 1996) [1998] ZMSC 114 (30 January 1998)

IN THE SUPREME COURT OF ZAMBIA SCZ APPEAL NO. 37 OF 1996 HOLDEN AT LUSAKA/NDO LA (CIVI L JURISD ICTION} B E T W E E N COPPERBELT BOTTLING COMPANY LIMITED APPELLANT vs PHINEAS FOMBE RESPONDENT Coram: Chaila, Chirwa and Lewanika, JJS 5th September, 1996 and 30th January, 1998 For the Appellant: Mr. E. Banda, Ezugha Musonda & Company For the Respondent: Mr . V. K. Mwewa , J. B. Sakal a & Company J U D G M E N T Chaila, J. S., delivered the judgment of t he court . Th is is an appea l against the judgment of t he High Court ( E. S. M. Simachela, J) aw ardin g damag es for wrongf ul dismi s sal to the respondent. The brief facts of the cas e as found by the learn ed tri al judg e were that th e respondent wa s employed by t/'Eap pe llant 1 s company. During h is course of employmen t the respondent committed some di sci plin ary of fe nces. He wa s c harged and was asked to appear, after he had been written to, before th e disciplinary co mmittee. The di scip lin ary comm it tee aft er hearing the matter decided to dismiss the respondent. The respondent being di ssati sf ied with the acti on of dismissal appealed to the Man aging Director of t he company. The Managing Director when he wa s deal ing with the appeal invited the Pe rson ne l .•• I 2 J2 Manager of the company to advise him. The Personnel Manager ' - ... , had earlier on chaired the committee which heard the respondent 1 s case. The learned trial judge found that the respondent was a dishonest person but he concluded that the Managing Director erred in inviting the person who had earlier on chaired a disciplinary meeting and the learned trial judge concluded that it was a violation of the rules of , natural justice and that the dismissal was wrongful. He awarded the respondent a salary from 1993 until payment, together with interest at the current bank lending rate. The appellant has filed two main grounds of appeal. The first ground relates to liability. The second ground is on damages. The first ground is that the learned trial judge misdirected himself in holding that the dismissal of the respondent on 22nd September, 1993 was wrongful due to the fact that there had been some violations of the rules of natural justice. The second ground is that the learned trial judge erred in law in awarding the respondent arrears of salary from the date of dismissal to the date of judgment, plus interest at the current bank lending rates. We will now deal with the first ground. The learned counsel for the appellant submitted that the learned trial judge found that no master would even opt to keep a servant in his employment after clear proof of dishonesty. The learned judge went on to say that in the present case he accepted that the respondent had in fact acted dishonestly but since there had been some violations of the rules of natural j ustice, . . . / 3 - J3 he held the dismissal was wrongful. The learned counsel added that the learned trial judge 1 s finding was not supported by the evidence on record which showed that prior to his dismissa l the respondent was granted a hearing after a charge had been laid against him. The counsel argued that the learned trial judge 1 s conclusion was therefore against the weight of the evidence. The. Counsel further argued that the learned trial judge erred in holding that the dismissal was wrong merely because there could have been some breach of-the rules of natural justice. The learned counsel drew our attention to a number of cases dealing with a situation of pure master and servant relationships where the employer is not bound by the rules of natural justice. He referred us to the famous cases of CONTRACT HAULAGE LIMITED vs MUMBUWA KAMAYOYO (1982) ZR 13 where this court followed the decision in the case of MALLOCH vs ABERDEEN CORPORATION (1971) 2 All ER 1278 in which it wJs held that: "One may accept that if there are relationships in which all the requirements of the observance of the rules of natural justice are excluded there must be confined to what have been called pure master and servant cases, which I take to mean cases in which there is no element of public employment of service, no support by statute, nothing in the nature of an office or a status which i s c a p a b 1 e o f p r o t e c t i o n 11 • The learned counsel further referred us to the case of RIDGE vs BALDWIN (1963) 1Qrs at 539 which the Court of Appeal followed in the case of RAINE ENGINEERING vs BAKER (1972) ZR at 156 and i t was held that: - J4 - "the question in a pure case of master and servant does not at all depend on whether the master has heard the servant in his own defence: it depends on whether the facts emerging at the trial prove breach of contract". The learned counsel for the appellant further argued that the learned trial judge wrongly found that the presence of the Human Resources Manager (PW2) during the hearing of the appellant's appeal by the Managing Director was a further violat i on of the rules of natural justice. According to the counsel 1 s ,argument, that finding was not supported by the evidence on record as that particular witness did not dismiss the respondent. PW2 denied having heard any appeal as he was not authorised to hear appeals. His evidence was that he attended the appeal merely as an observer. The counsel further argued that having found as a fact that the respondent acted dishonestly, Lhe learned trial judge could not proceed to hold that the dismissal was wrongful in view of the fact that an employer has a right to dismiss for misconduct and that since there was no evidence of a breach of the terms or contract by the appellant, the dismissal could not in any way be said to be wrongful. As regards the first ground, Mr. Mwewa counsel for the respondent urged this court to uphold the finding of the lower court that the dismissal was wrongful mainly on two grounds, i.e. the respondent was dismissed on fresh evidence of which an opportunity to be heard was not given to him. Secondly, the same person who chaired the initial disciplinary hearing (PW2) was also present during the hearing of the appeal of the respondent. Mr. Mwewa added that even though PW2 denied ... Is JS having a role in the hearing of the appeal there was ample evidence that he was in fact the author of the letter dismissin g the respondent's appeal. We have considered the evidence on record, the judgment and the authorities referred to us by the counsel for the appellant. It is not in dispute that the appellant took some disciplinary action against the respondent. The evidence adduced by the appellant was that the case involving the respondent was referred to PW2 who was a Human Resources Mana ger of the appellant's company. The evidence of the respondent himself showed that after some allegations were made against him he was summoned to Kitwe to see the Personnel Officer. There he was shown the disciplinary notice prepared by a Mr. Mulenga. He disputed the contents of the disciplinary notice. The case was referred back to the Head of Department Mr. Sakulingwa who dismissed him verbally. After that he received a letter of dismissal dated 22nd September, 1993. He was not happy with that letter, so he appealed to the Personnel and Administrative Manager Mr. Kazabu, DW2. He was asked to see Mr. Kazabu in Kitwe and he saw him on 22nd October, 1993. When he went there the respondent sat there before Mr. Sakulingwa, Mr. Gondwe, Area Manager, Mr. Sirnu koko, Personnel Officer, Mr. Munyenyembe, Deputy and the Chairman Mr. Kazabu, Personnel and Administration. At t he end of the hearing of his case, the chairman Mr. Kazabu told h im t hat he was going to write back to him. He waited for 14 days. He received a letter from Mr. Sakulingwa s t ating that he had ••• I 6 J6 received fresh information relating to his case and he was advised to travel to Kitwe on 4th November, 1993 for the hearing of the appeal. The second hearing was conducted and he was told that the hearing had failed and he received a le t ter to that , effect. The appeal went to the Managing Direc t or and when he went to meet the Managing Director he found Mr. Kazabu with the Managing Director. He was told again to appeal had failed. From the evidence of the respondent himself, it is quite clear that the respondent had been given chances of opportunity to be heard and in fact he was heard. Mr. Mwewa has complained after the emerge nce of th e ne w evidence the respondent was not given an opport unity t o be heard, but this is contrary to what the respondent said hi mself and to the evidence on record. We have read the authorities referred to us. The authorities imply that in a pure case of master and servant the question does not at all depe nd on whether the master has heard a servant in his own defence. But the facts in this case show that the respondent was in fact heard. In the case WARD vs BRADFORD CORPORATION, 1971, 70 L. G. R. 27, Lord Denning said: 11 We must not force these disciplinary bodies to become entremmeled in the nets of legal procedure. So long as they act fairly and justly their decision should be supported 11 • This case was considered and applied by us in the case of BANK OF ZAMBIA and PETER KOMBANIYA, Appeal No. 87 of 1996. The complaint in this case by Mr. Mwewa, counsel for the respondent was that Mr. Kazabu, Human Resources Manager, who had written a letter of dismissal to the respondent ••. I 7 - J7 - in f luenced the decision of the Managing Director when the respondent appealed to him. This was a view of the learned trial judge and that the re was violation of natural justice. The evidence shows that Mr. Kazabu did not dismiss the respondent, the letter of dismissal was written by anot he r person. Mr. Kazabu together with his members of staff heard the appeal and the appeal was dismissed. The matter went to the Managing Director and according to the evidence the Human Resources Manager was invited only as an observer. The evidence showed that the applicant's co mpany had acted fairly and justly in dealing wi t h the respondent . The learned trial judge himself found that the respondent was a dishonest person . Mr. Banda, counsel for the appellant was on very firm ground wh en he argued that thP judge having found the respondent to be a dishonest person sh o u I d hav e not g i v en tlH: be n e Fi t of doubt to the respondent . We agree with Mr. Banda's con ten tion. The learned trial judge having found that the r es pondent was a dishonest person should have not decid ed in his f avo ur . We fu rther fin d from t he evidence on record that the appellant's company in dealing with the respondent acted fairly and j us t ly. The dismissal, therefore, should be supported. This appeal, therefor&, succeeds on t his ground . As regards the second ground, Mr . Mwewa, counsel for the re s pondent has conceded that there is nothing extraordinary t hat would ta ke the case out of the Kamayoyo's ca se i n cases of dam age s to the employee. The rationale in the Kamayoyo's case is that damage s wo ul d be the us ual sal ary for the no tic e ... I 8 J8 period. We uphold the concept that damages would only amount to the notice period. The learned trial judge therefore misdirected himself when he gave damages contrary to the principle laid down in the Kamayoyo case. On this ground the appeal would also succeed. For the reasons we have given above, this appeal is allowed. The finding that the dismissal was wrongful is set aside and there is no need to make orders on damages since they do not arise. The dismissal was not, therefore, wrongful. The appeal is therefore allowed with costs. M. S. Chaila SUPRFME COURT JUDGE D. K. Chirwa SUPREME COURT JUDGE D. M. Lewanika SUPREME COURT JUDGE