Tembo v Barclays Bank Zambia PLC (Appeal 59 of 2006) [2007] ZMSC 150 (15 August 2007)

JI IN THE SUPREME OF ZAMBIA HOLDEN AT LUSAKA (Civil Jurisdiction) APPEAL NO. 59/2006 BETWEEN CYPRIAN MAFIPE TEMBO APPELLANT AND BARCLAYS BANK ZAMBIA PLC RESPONDENT Carom: Chibsekunda, Mushabati, JJs, Kabalata Ag. JS On 2nd August 2000 and 15th August, 2007. For the Appellant: For the Respondent: Mr. J. C. Chashi of Mweemba Chashi and ______________________ Partners._____________________________ Appearing in person. ____________________ JUDGEMENT_______________ Chibesakunda, JS delivered the Judgment of the court Cases referred to: (1) (2) (3) Angel Gomani Nkandu and Mopani Copper Mines Appl. No. 33/2003. Fred Musonda and Barclays Bank Plc Appl. No. 128 of 2004 Barclays Bank Zambia Plc and Benjamin Ndeketeya Mvula - Appeal No. 51 of 2002 (4) Tolani Zulu and Musa Hamwala and Barclays Bank Zambia Plc - [2003] Z. R. 127. Legislation referred to: (4) Section 97 of Cap 269 This is an appeal by the Appellant against the Industrial Relations Court’s decision, which was in favour of the Respondent. The facts before the Industrial Relations Court, which were not in dispute, are that the Appellant joined the Respondent as a Clerk on the 13th of January 1986. On J2 13 January 1986 he signed Articles of Agreement, which contained inter alia Clause 6, which will be referred to later on in our judgment. He rose through the ranks to the position of supervisor in 1991. In 1995 he transferred from the Respondent’s Northend Branch to Mutaba House Branch where he became a custodian of the strong room. Prior to 13 th March, 1996 the Appellant and Mrs. Sipaita were given a responsibility to be co-custodian of the strong-room. On or just about 13th March, 1996 the Respondent’s Management informed him and his co-custodian Mrs. Sipaita that the bank was missing South African RI00,000 from the strong room. So he and Mrs. Sipaita as co-custodian were asked to submit exculpatory statements. They both did so. However, the following day he alone was told to report himself to the Respondent’s Inspectorate Section at the Respondent’s Headquarters. He was told that he was suspected to have stolen the South African RI,000,000 from the strong room. Subsequently he was taken to the Zambia Police Force where a report was made on the missing RI,000,000 from the Respondent’s strong room. But police released him. He was not charged with any offence. On the 13th March 1996 he received a letter suspending him from the Respondent’s work. It is not in dispute that the Appellant was a Unionized employee and that at the material time there was in force a Collective Agreement entered into between ZUFIAW and the Respondent. The Appellant’s case before the Industrial Relations Court was that when he submitted the exculpatory letter on the missing RI,000,000, he was not given a chance to be heard on the allegations of theft of the money as required by Clause 2.5 of the Respondent’s Grievance of the Disciplinary J3 Code. He testified that however, after six months he received a letter of termination dated 18 September, 1996. He informed the court that this letter of termination was with effect from 18th September 1996 as per Clause six (6) of the Articles of Agreement. He quoted Clause six (6) which says: “THIS Agreement and the employment of the Employee hereunder shall be determinable by one calendar month’s notice in writing served at any time by either party upon the other” His further testimony was that he appealed against the discharge to the Appeals Committee. However, he received a letter dated 24th December 1996 from the Respondent informing him that his appeal would not be heard because his contract of service was terminated under Clause Six (6) of the Articles of Agreement and that the Bank complied with this provision in the contract of his employment by paying him one month’s salary in lieu of notice. He maintained before the Industrial Relations Court that his understanding of Clause six (6) was that either party to the agreement could terminate the contract of employment without giving any reasons as long as all was well. He submitted that since the Respondent had suspended him on the account that he was suspected to have stolen RI,000,000 they cannot apply Clause six (6) of the Articles of Agreement as circumstances compelled them to conclude the disciplinary procedure which they just had embarked on. In his view the Respondents were camouflaging his dismissal by invoking Clause six (6) of the Articles of Agreement. He further sought the reliefs as follows: 1. A declaration that the termination, dismissal was and is null and void 2 . Reinstatement J4 3. Damages for unfair, wrongful and/or unlawful termination or dismissal 4. Alternatively the Appellant be deemed to have retired and be paid retirement benefits. The Respondent’s case before the Industrial Relations Court was that it was correct that the Appellant was suspended on the suspicion that he was involved in the theft of RSI, 000,000. The bank decided to terminate the Appellant’s contract of employment under Clause six (6) of the Articles of Agreement. They testified that the Appellant out of his own will signed the Articles at the time he joined the Respondent. According to them the Appellant knew that the Grievances and Displinary Code as well as the Articles of Agreement governed his conditions of service. Their position was that both these sets of conditions of service carried equal amount of weight. Their position at the Industrial Relations Court also was that the discharge under Clause six (6) did not demand that the Respondent’s give any reasons for invoking that Clause. They also argued that termination under Clause six (6) of the Articles of Agreement did not demand that the employees be charged and given a chance to be heard before termination. Therefore since Clause six (6) did not demand any special procedure before termination of any employees’ contract, they were not obliged to have given him the chance to be heard nor was he entitled to appeal against that discharge. So they would not be faulted. The Industrial Relations Court as already indicated ruled that the Respondents were not in breach of any condition of service and that there J5 were within powers to opt to invoke Clause 6 of the Articles of Agreement. They also found that the issue of appeal did not arise because Clause 6 of the Articles of Agreement did not provide for such procedure. Aggrieved by this decision of the Industrial Relations court the Appellant appealed to this court. are:- The Appellant raised 3 grounds of Appeal before this court. These 1. That the learned trial Judge erred in law and fact in deciding that as per the rule of natural justice the Appellant was given an opportunity to be heard as detailed below:- (i) The statement referred to in the judgment was an exculpatory statement giving details about the missing RI00,000 before the commencement of investigations. Furthermore, the said statement was never produced in Court. (ii) The statement in the judgment as evidence that the Appellant was given an opportunity to be heard is different from the one mentioned in (i) above, as this was merely an attachment to the letter of appeal that was never considered. 2. The Learned trial Judge erred in law and fact in deciding that the question of precedence between the Grievances and Disciplinary Code and the Articles of Agreement did not arise in this case by overlooking the following cardinal issues: J6 (i) That the Respondents, in their suspension letter of 13th March 1996 undoubtedly commenced a disciplinary process under the Grievances and Disciplinary Code (ii) That in report of March 1996, the Respondents accused the Appellant of theft and recommended for his dismissal which case is only provided for in the Grievances and Disciplinary Code. (iii) That in their letter of discharge dated 18th September 1996 the Respondent invited an appeal within 7 consecutive working days from the Appellant a provision available in the Grievances and Disciplinary Code but not in the Articles of Agreement. (iv) That by acknowledging the Grievances and Disciplinary Code and engaging the Articles of Agreement at the very end, the Respondent manipulated the disciplinary system and as a result, the Grievances and Disciplinary Code and Articles of Agreement which are supposed to complement each other, were brought into conflict thereby giving rise to establish as which of the two documents took precedence in this matter. 3. The Learned trial Judge erred in law and fact in deciding that no disciplinary action had been taken against the Appellant and that as such the Respondent had a number of options, including using clause 6, open to deal with the Appellant. The Learned trial Judge failed to take into account the following issues: J7 (i) That in the suspension letter, the Respondent’s report of March 1996 and letter of discharge, the Respondent implied that the Appellant stole the RI 00, 000 from the strong room. (ii) That a disciplinary process had been commenced at the onset culminating in the dismissal of the Appellant. (iii) That by holding that the Respondent had a number of options open to them, the Learned trial Judge implied that the Appellant had gone to court with dirty hands despite the fact that there was no evidence produced in court to that effect. (iv) That since the letter of discharge refers to the allegations against the Appellant, the use of Clause 6 was inappropriate as the reasons for terminating the Appellant’s employment was given. And as such, the matter could only be dealt with as dismissal under the Grievances and Disciplinary Code, which allows for an accused party to state his/her case and also provides for an appeal. In his argument before this court the Appellant argued that although the Respondent purported to terminate his contract under Clause 6 of the Articles of Agreement, in actual fact this was a dismissal. In support of his argument he referred to a number of places in the evidence of the Respondent witness where the witness talked about dismissal. He argued that the Respondent’s choice of invoking the procedure in Clause 6 of the Articles of Agreement was to camouflage the whole exercise of dismissing J8 him, thus avoiding complying with the procedure stipulated in the Collective Agreement. So he urged this court to upset the findings of the lower court and to give him the reliefs he is seeking. Augmenting this argument he argued that although the findings of the Industrial Relations Court are findings of facts, they are findings of facts mixed with law. He argued that, the decision by the Industrial Court that he was not entitled to protection inherent in the doctrine of natural justice was an error. He further more argued that the court below glossed over the evidence that Ms Spaita was given a chance to exonerate herself and was never dismissed. He never was given a chance other than the statement he put in and just received a letter of dismissal. He quoted the case of Angel Gomani Nkandn and Mopani Copper Mines(V) and argued that although the general rule is that this court will not reverse the findings of fact made by the trial Judge who had opportunity to see the parties and hear witnesses give evidence in court, also the court is satisfied with the findings in question were not supported by the evidence on record or were made in the absence of any relative evidence or upon misapprehension of facts before the court or that these were findings which had a proper view of evidence, no trial court acting reasonably can make such findings, this is such exception. He argued that in this case this court in applying these principles should reverse these findings of fact. Mr. Chashi in response relied on his written heads of argument. In his written heads of argument on ground 1 and 3, he argued that, contrary to the submissions of the Appellant, the Industrial Relations Court made findings of fact. He argued that Section 97 of Cap 269 (5) bars an appeal lying from J9 Industrial Relations Court on findings of fact. He cited the case of Fred Musonda and Barclays Bank Plc (2) and urged this court to dismiss the first ground of appeal. On ground 2 Mr. Chashi citing two cases, one, Barclays Bank Zambia Plc and Benjamin Ndeketeya Mvula (3) and Tolani Zulu and Musa Hamwala and Barclays Bank Zambia Plc (4) He argued that the position at law is that the Articles of Agreement were part of the Appellant’s terms and conditions of service and were part of the Collective Agreement. The Respondent therefore had every right to choose one set of conditions and to use that set of conditions to terminate the employment of the Appellant. On ground 2 he also argued that the Industrial Relations Court did not err in law in deciding that no disciplinary action had been taken against the Appellant and as such the Respondent had a number of options including the use of Clause 6 of the Articles of Agreement to terminate his contract. He argued that this ground like the first ground is anchored to the Industrial Relations Court’s findings of fact and as such Section 97 of Cap 269 (5) prescribe against an appeal lying to this Court. We have considered all these issues raised in this appeal and we have also seriously considered the evidence before the Industrial Relations Court, this now before us. As regards grounds one and three, we agree with Mr Chashi that these two grounds relate especially to the findings of fact by the Industrial Relations Court and as such Section 97 of Cap 269(5) bars such an appeal lying to this court from the Industrial Relations Court. The Industrial Relations Court found as a fact that the Articles of Agreement were part of the Appellant’s conditions of service. The Industrial Relations Court found that the Respondent abandoned the disciplinary procedures and as such they could opt to invoke Clause 6 of the Articles of Agreement. J10 We are therefore, satisfied that the Industrial Relations Court rightly found that the Respondent properly invoked Clause 6. These are findings of fact and Section 97 of Cap 369 (5) bars an appeal lying from the Industrial Relations Court to this Court. On ground 3 we are also satisfied that the evidence on record is that the court found that the Respondent commenced disciplinary proceedings, they abandoned these proceedings. Therefore, ground 2 also has no merit. In conclusion the appeal has no merit. We dismiss it, and we make no order on costs. L. P. Chibeskunda SUPREME COURT JUDGE