Dave Samutela v Kaltire Mining Tire Group (COMP NO. IRCND/113/2020) [2024] ZMHC 316 (20 July 2024)

Jl IN THE HIGH COURT FOR ZAMBIA INDUSTRIAL RELATIONS DIVISION COMP NO. IRCND/113/2020 HOLDEN AT NDOLA (Civil Jurisdiction) . BETWEEN: I I I _, DAVE SAMUTELA () AND . • ,·~.r·:\ir·, ,:Oi?z~t· ._, I': ,,I ' I 1,'o ! I')'._'< 14 ~- . I I{) , ,\ I ,) ! ,_~ , , ::,. / COMPLAINANT KALTIRE MINING TIRE GROUP RESPONDENT CORAM: Hon. E. MWANSA Esq JUDGE APPEARANCES: For the Complainant ' ) Mr. Sakala E - Messrs J. B. Sakala and Conipp,ny as Agents for Messrs Muya and Company For the Respondent Mrs. Nambule - Messrs Howard and Marieta Legal Practitioners JUDGMENT Authorities Referred to: 1. Industrial and Labour Relations Act Chapter 269 of the Laws of Zambia. 2. TheEmployment(Amendment)Act No. 15 of 2019. J2 Cases Referred to: 1. Mwanza -V- National Transport Corporation of Zambia and Another (1979) ZR 129. 2. Buttler Asimbuya Sitali -V- Central Board of Health SCZ Appeal No. 178/99. 3. Caroline Tomalda Daka -V- Zambia National Commercial Bank Plc. { 4 . Wilson Masauso Zulu -V- Avondale Housing Project (1982) ZR 172. Authoritative Works: 1. Sprack John "Employment Law and Practice " 1 :.t Edition. 2. Tolley's Employment Hand Book 11 t h Edit ion. INTRODUCTION 1.1. This matter was lodged into Court on 18th Decem ber, 2020. The Affidavit in support th ereof was filed at th e i I same time. 1.2. The grounds upon which this Complaint is presented allege, very briefly as follows : 1.2.1. That the Complainant was unfairly given the first warning letter on the 21 st February, 2019 when the Complainant was out to Mkushi/ Serenje on duty. 1.2.2. That the second warning letter was issued to the Complainant on the 2nd March, 2019. J3 1.2.3. That on both these warnings, the Complainant was not given an opportunity to exculpate himself. 1.2.4. That the Complainant received the charge sheet on 8 th August,2019 wherein he was requested to exculpate himself. 1.2.5. That he did exculpate himself in writing, but that he was dismissed from employment nonetheless. 1.3. The Complainant seeks the following relie f: 1.3.1. Reinstatement; 1.3.2. Gratuity and salaries for the period August, 2019 to December, 201 9 (th is is the per iod after dismissal); 1.3.3. Damages for breach of contract; 1.3.4. Leave days; 1.3.5. Costs; 1.3.6. Any other relief the Court may deem fit. 2. COMPLAINANT'S CASE The Complainant called two witnesses including himself for the prosecution of his case. The other witness, Dickson Phiri was not helpful at all. So his evidence is not reflected here. 2.1. His testimony was to the effect that he was employed J4 as a Sales Representative on 1st January, 2019 to 12 th August, 2019. 2.1.1. There is a contract of employment executed by the parties herein at 'DS 1 '. 2.2. That he went out on duty to Mkushi Copper Mine on 17th February, 2019 and got back on the 20th J I February, 2019 . 2.3. The Complainant appreciates that he was required to submit a checklist for the motor vehicle h e was using, on Monday 18th February, 2019. But th at t h is was th e time he was out to Mkushi. 2.3.1. Check lists were to be submitted every Monday. 2.4. That he later received a warning le tter via e -mail (The same e-mail he could have used to communicate the checklist) for failure to submit a check list on time. 2.5. It was the Complainant's testimony that he again got another warning letter on 2 nd March, 20 1 9. This was allegedly for failure to report a dent on the motor vehicle he was using. 2 .6. According to him, he had taken the motor vehicle for service at Kitwe but he did not notice the dent giving rise to the 2 nd warning. JS 2. 7 • He stated further that on 8 th August, 2019, he was charged for an offence of damaging the motor vehicle. 2.8 . It was his testimony that while offloading a compressor at Afrox, an employee of Afrox operated a Forklift which caused damage to the tail light of the vehicle ( hence the charge. 2.9. He denied causing such damage as it was not him who was operating the forklift. 2.10. When the Fleet Manager, Mr. Kla u s requested for th e incident report, Complainant told him tha t it was th e safety officer to do that. The report was later presented, and it is before Court. l 2.11. On 12th August, 2 0 1 9, the Complainant was dismissed from employment. 2 . 12. He alleges that nothing in his exculpatory letter was considered and he was never heard on the charge. 2.13. According to him, the dismissal was contrary to Labour Laws. (But did not specify which labours were not followed). J6 2 . 14. That in the premises, the termination was wrongful and unfair. 2.2. The co~plainant then sought the relief as earlier on stated. These are reinstatement, gratuity and salaries for August, 2019 to December, 2019 , damages for breach of employment contract, leave days, costs and any other relief the Court may deem fit. 3 . RESPONDENT'S CASE 3 . 1. The Respondent called one witn ess Dave Mbule, a Sales Manager with the Respondent. 3 .2. His testimony was not unhelpful in t he material particular. 3.2.1. It is this Court's posit ion th at parties especially whe re there 's Counsel, will do well not to call witnesses wh o will say nothing to assist the Court or even the party calling the particular witness. In casu, two witnesses were completely unhelpful. 3.2.2. This witness was not at all helpful to anyone or indeed to the proceedings. 3.3. But from the Answer and the Affidavit in Support J7 thereof, the Respondent allege that the warning letter on late submission of the check list was for the previous week 11th to 16th February, 2019. 3 .3.1. Quickly I make a note hear that the checklist was to be handed in on Monday the following week, while the Complainant was away in Mkushi. 3 . 4. The second warning letter was for fa ilure to re port a dent when he took the motor veh icle to Kitwe for service. In his own words in th e Affida vit in Support of Complaint, at paragraph 6, h e testifies that h e d id n ot notice the dent. 3.5. That the incident at Afrox led to h is dism issal a s h e was negligent. 3.6. The incident report on 'SRF2' did not name the Complainant as the one who caused the damage to the tail light but mentions a Team Member. This is what Complainant said as well. 4. ISSUES FOR DETERMINATION 4. 1. Whether the warning letters especially the one for late submission of checklist was in order. Is a warning letter in Order without a hearing? J8 4 .2. Whether or not the incident at Afrox could be attributed wholly or at all to the Complainant for him to be dismissed on it. 5. REASONING 5.1. The record is very clear, infact there are few points of disagreement between the parties in this cause. 5.2. One of the issues that the Complainant raises J repeatedly is that he could not submit the checklist because he was away in Mkushi ) 5.3. I do not know exactly in what form at the ch ecklist is required to the submitted. There is n o mention anywhere in the evidence of both parties. But I would like to shelf that excuse away . 5.4. Surely in today's World of Technology, it would be perplexing to hear the words spoken by the Complainant that he could not submit the check list because he was away in Mkushi. Yet he told us that he received the warning letter via e-mail. Why could he not use the same method to send the check list? I find his reason rather dry and bare, and does not move me to accept it. 5 .5. But perhaps the big question is; can a warning letter be issued without a hearing? J9 5 .6. The starting point is what the contract of employment states. There is no problem if it states so. There may be a problem as there is in this case, when it does not expressly state so. 5. 7. I opine strongly that any form of disciplinary record, as was in the present case, requires that the Employee is given a chance to exculpate himself and to even b e heard in a disciplinary committee . 5.8. In our present case, the Complainant was given two warnings without even bein g asked to exculpa te himself. He was not eve n heard on th e charge s . I am sorry, that is what labour law comes agains t - to punish somebody without being heard . A \varnin g is a sanction as it is a negative r ecord car ried forward on which a subsequent, stiffer sanction maybe b a sed. 5.9. The charge letter in this case is clearly stating in the second paragraph of 'DS6 ' as follows: " .. ...... on three separate occasions this year you have been found wanting in reg~rd to the above violations and have been issued warning letters on the 2 nd of March and the 21st of February, respectively ..... " 5.10. Clearly, reference to the warnings show how important JlO in the disciplinary process the warning is. Since it is this important, it is equally important that the employee be heard before any such warning is issued to him/her. ( 5.11. Failure to hold disciplinary hearing before a warning is issued is grave to the disciplinary process. It IS In breach of the Employment Contract and Is thus wrongful for which damages are due . I orde r damages for this breach, to include all allowan ces receivable per month. Mwanza -V- National Tra nsport Corporation of Zambia and Another (1979) ZR 12 9 , it was said: "Upon wrongful dismissal due to Ci!, b reach of contract by the e mployer, the erre.ployee is entitled to a salary and others .. .. for a period equivalent to the relevant peri.od of notice ". 5.12. On dismissal without being hea rd ; the Complainant has acknowledged exculpating himself in writing and a few days later receiving a termination letter. 5.12.1. There is authority to be found in the case of Buttler Asimbuyu -V- Central Board of Health SCZ Appeal No. 178/99 for the position that: "Hearl.ng for the purpose of disciplinary proceedings is not only confined to physical presence of an accused and giving evidence. In Jl 1 our view, a submission of an exculpatory letter in disciplinary proceedings is a form of heari.ng. What is important is that a party is afforded an opportunity to present his or her case or defence orally or in wri.ting". I 5.13. In our present case there is a clear indication that an exculpatory letter was submitted before the dismissal. There was no h ea r ing orally. It a ppears on the strength of this a uthority that the Complainant , through his exculpatory le tter, was heard. I subscribe to that. 5 . 14. The dismissal could have been p roper had it not relied on the warnings which were defective and vvrongful. 5.15. It is thus proper to hold , as I n ow do , tha t the dismissal, for placing reliance on t h e wrongful warnings, is itself wrongful for which an award of damages is proper. Accordingly an award of three months salary to include all allowances, is not too much and not too little either. I award that. 5.16. The expression 'unfair' dismissal keeps on popping up eventhough, there is no express relief touching it. So, I will discuss it briefly. 5 . 17. Unfair dismissal is a statutory concept having a J12 bearing on the Employment Rights of the individuals, hence it relates to the reason for the dismissal, vis-a - vis relevant legislation. 5.17 .1. In Caroline Tomaldah Daka -V- Zambia National Commercial Bank Plc, Matibini J , as he then was, stated: "Unlike wrongful dismissal, unfair dismissal has its origin in statutory law, it is a creature of statute. The primary goal of statutory law in this r egard is the promotion of fair labour practice s" 5.17.2. Again 1n Wi lson M asauso Zu lu - V Avondale Hou s ing Project Limited, th e Suprem e Court , while examin ing a claim under a similar h ead had to look at reason s for dismissal and de termin e wh eth er or n ot that action that led to dis missal wa s legislated upon to be termed 'unfair'. 5.18. In casu, I have not been alerted to any unreasonableness or breach of any statutory provision for the dismissal to qualify to be termed 'unfair'. So that should react against the Complainant's claim, as the same fails . 5.19. As a result of what I have stated above, the remedy of J13 reinstatement cannot be available to the Complainant. To be available, there must be proof that the dismissal was unfair. I have only held earlier that the dismissal was wrongful not unfair. 5 .19 .1. It was wrongful because both warning letters were wrongful but not unfairly issued. 5.20. On gratuity, the contract of employment states, I quote: "Your statutory gratuity equal to two month's salary per year worked will be payab le on exp i ry of your contract, gratuities w i ll only h e pa.yble to employees who are in the compa ny's emp loyme nt at the end of the contract' 5.20 .1. Evidence before Court is that the con tract period was not served to its organic expiration as the Complainant was dismissed. So he is not entitled to gratuity. 5.21. Let me quickly state that salaries that have not been worked for cannot be paid as that would be tantamount to unjust enrichment. So that cannot be available under this head. So it fails. 5.22. On the leave days, the Respondent only goes to state J14 that they paid, without exhibiting the payslip or indeed proof of such payment. They could have done well to show how this was paid. 5.23. In case it was not paid, leave days are due for the period served. I award that accordingly. 6. CONCLUSION 6 . 1. All told, I have agreed with the Complainant that there was wrongful dismissal and have awarded aggregated damages at three months salary including all allowances payable in a month. 6.2 . I have found that there is no evidence for the dismissal to meet the standard of unfair dismissal, so t h e r emedy of reinstatement cannot be available. 6.3. I have not allowed the claim for gratuity, as well as salaries not worked for, and I have provided a reason for that position. 6. 4. I also found that, there is a possibility that leave days were paid but for lack of evidence on which the same was paid. So, if it was not paid, this should be paid as per the contract provision of two (02) days per month, for the months actually worked. Jl5 6.5. I have not found any other relief that maybe afforded the Complainant. 6.6 . Whatever sums are found to be due, will then attract interest at the Bank of Zambia short term deposit rate from date of notice of Complaint being 18th December, 2020 to Judgment and thereafter at 6% to date of complete settlement. 6. 7. I make no Order as to costs, as the cla im is only partially successful. 6.8. Leave to Appeal is granted . Delivered this .. ... . day of J u ly, 2 022 ···························· ·······\·i~····· E. MWANSA HIGH COURT JUDGE ' l