David Ross v G4 Security Solutions Zambia Limited (APPEAL NO. 20/2016; CAZ/8/12/2016) [2017] ZMCA 496 (28 September 2017)

CJ')0~ j r;i) 2-0 I 6 IN THE COURT OF APPEAL FOR ZAMBIA APPE AL N0.20/20lm HOLDEN AT LUSAKA ( Civil Jurisdiction) BETWEEN: DAVID ROSS APPELLANT AND G4 SECURITY SOLUTIONS ZAMBIA LIMITED RESPONDENT Coram: C. K Makungu, J. Chashi, D. L. Y. Sichinga J. J. A On 9 t h June , 2017 and 28th September, 2017. ~ -- F0r -the ru:2pellant:. -~";~ ..:-. --.:. .,,,. · - - ~ -- ¥-M_s . . J. Mutemi, Tbeotis . Mataka and Sampa •~°1',s:- ., Leglfl Pr actition ers ..,,.. - · - ..,,..-- · - ·~~'\):: -,~ .. -=< · • ' - : . .. . T',."'; ~ ~ -- ~ -- For the Respondent: Mr. J . Kabwe, Mwenye and Mwitwa Advocates JUDGMENT C. K. MAKUNGU, JA delivered the Judgment of the Court. Cases referred to: 1. Mopani Copper Mines Plc v Moffat Banda - Appeal No. 88 of 2. Zambia Railways Limited v Pauline S. Mundia, Brian Sialumba (2008) ZR 287 Vol I 3. Barclays Bank Zambia Limited v Manda Chola & Ignati~ \:::f:!j Mubanga (1997) S. J 35 (SC) 4. Zambia Consolidated Copper Mines v James Matale (1995- 1997) Z. R 145 5. Zambia Electricity Supply Corporation Limited v David Lubasi Muyambango (2008) ZR 22 6. Bank of Zambia v Peter Kambaniya SCZ Appeal No . 8 7 of 7. Whitbread & Co plc v Mills (1988) 1 CR 776 8. Zambia Radiological & Imaging Co. Ltd and Others v Development Bank of Zambia - Appeal No .28 of 2016 9. Attorney General v Marcus Kampumba Achiume (1983) ZR 1 1 0. Zulu v Avondale Housing Project Ltd (1981) ZR 172 11. The Attorney General v Richard Jackson Phiri (1988 - 1989) Z. R. 121 (S. C.) ~ -- 1. The Industrial and Labour Relations Act, Chapter 269 of the Laws of Zambia - Sections 97, 108 Other authorities referred to: 1. Halsbury's Laws of England, 4 th edition, volume 1 (1) paragraph 94 2. Employment Law in Zambia by Marjorie Mwenda (2004) Unza press; Lusaka - pages 48 and 68 This is an appeal against a J u dgment of the Industrial Relations Court delivered on 12th August, 2016 . The material facts are that the appellant was employed on 17 th January, 2009 as Director - Cash Solutions by the respondent Company. On 11 th November , -J2- 2011, he was charged with falsifying informa tion contrary to Section E(5) (a) of the respondent's Disciplinary Code which h e denied in writing on 12 th December , 2011. Consequently, a h earing was h eld and h e was dismissed from employment on 24th December, 2011. He a ppealed on 6 th January, 2012 and his appeal was upheld by the respondent's Human Resource Director. Later, the respondent issued fresh charges of 'making a false report either ve rbally or in writing pursuant to section E (4) of the respondent's Disciplinary Code. ' He denied the charges on the ground that h e had already b een subjected to a disciplinary hearing. The second hearing took place in his absence on 21 st February, 20 12. The appellant h ad through his advocates refuse d _;/,._ . to a ttend the hearing because as far as he was concerned, h e h a d _;/,._ . .;/t.. . -~ ¢': .• ~~e~ clear~.§~1fl~ ~espond~ S)~~J~d him -w_i~~~-:e?ond dis1:!},i!s~< . · .,,. ..,.- letter on 21 st Fe bruary, 2012. He appealed in accordance with the - - ..,. - - - _;/,._ . _;/,._ . ..,.- .. Grievance Procedure Code. On 7 th August, 20 12 his a ppeal was dismissed. In the Lower Court, the appellant claimed the following reliefs: i. A d eclaration that his dismissal was unlawful and unfair s ince it was not done in accordance with the respondent's disciplinary code. n. A declaration that the dismissal was done contrary to the rules of natural jus tice . m. Damages for unlawful and unfair dismissal. w. Inte rest and v. Costs. -J3- In his judgment, the learned trial judge found that due process was followed and there was no violation of the appellant's terms and conditions of employment. The lower court was of the view that the respondent exercised its disciplinary powers against the appellant properly in the sense that there were facts established to support the disciplinary measur es taken against him and this was as a result of the failure on his part as Head of the Cash Solutions to ensure that the security of the branch was maintained to the expected standards of the respondent. The Court further found that the appellant conducted himself in a manner inconsistent with his duties . Further, that the appellant being the overall supervisor had more responsibilities and obligations > · to > · the company > · than his subordinates. > · The ~ - - -~~~ ,""-!-..:8:ppellant'_~~~~J;9--~ ·were th~S~C?.~~ ~ismisse<:S_;,$' . ~-><:_ . · .,,... - - .,,,,. - -r - .,,... - - + This appeal is based on four grounds couched as follows: 1. That the learned trial Judge e rred in fact and law when she failed to take into account that no evidence had been adduced to show that the appellant was guilty of the offence charged. 2. The learned Judge in the Court below erred in law when she totally failed to address the fact that the report in which the appellant was alleged to have lied, was actually not prepared by him but by another employee and that he had not had knowledge or sight of the same before the charge. -J4- 3. The trial Judge erred when she failed to take into account the fact that the company had no procedural guidelines to guide staff on specific expectations of security. 4. The learned trial Judge erred when she failed to take into account the fact that the respondent proceeded with the disciplinary hearing in the appellant's absence without informing him of their decision to do so. The respondent raised a p reliminary issue to the effect that this appeal should be dismissed for incompetence in view of Section 97 of the Industrial and Labour Relations Act (1l which provides .,,,._ · as follows: .,,,._. .,,,._. "Any person aggrieved by any award, declaration, decision or Judgment of the Court may appeal to the Supreme Court on any point of law or any point of mixed law and fact." The parties h ereto agreed that the preliminary application be dealt with together with the main appeal. We shall therefore handle the preliminary issue first. The respondent's argument in this respect are that an appeal must be anchored on a point of law or mixed law and fact in accordance with Section 97 above . That the grounds of appeal advanced by the appellant are all only b ased on fact. Reliance was placed on the case of Mopani Copper Mines PLC v Moffat Banda111 where the Supreme Court discussed Section 97 of the Industrial Relations Act Cap 269 of -JS- the Laws of Zambia and dismissed cer tain grounds of appeal that were based on points of fact alone. We were therefore urged to dismiss this appeal . The app ellant's advocate argued that the appeal is b ased on points of mixed facts and law. With r espect to the first and second grounds, she submitted that the findings by the Court below were in breach of the principle that he who asserts a claim in a civil trial must prove on a balance of probabilities that the other party is liable. She in this r egard referred us to the case of Zambia Railways Limited v Pauline S Mundia, Brian Siaulumba 121• As regards ground three, it was her su bmission that the principle of law that arises therein is that a breach of a .. Rro~~ion in the J,yort rules will qnlyJ~s~ify su:rp:rp.ary'-dismissal i[ ~-· ...;_; ¢': _....,,--.: . .,.__;,}{. --~ 'T:<.";-i: -~ it is expressly brought to the attention of the employee. Further . .,._-, -i: :.:"I-:.< ' -"-:,,);; -~ . - - - . . . - that, ground 4 raises both issues of fact and law as the lower court did not take into consideration the principles of natural justice (Audi Alteram Partem). In addressing the application before us, we shall focus mainly on two cases. Firstly, Barclays Bank Zambia Limited v Mando Chola and Ignatius Mubanga 131 wherein the Supreme Court held inter alia as follows: "Parties can only appeal to this court (in terms of S.97 of the Act) on points of law or any point of mixed law and fact. There was evidence to support the finding complained of so that we cannot say that it was a finding which was unsupported or which was made on a -J6- view of the facts which could not reasonably be entertained. In short, no question of law or of mixed fact and law arose in the ground of appeal advanced. We reject this aspect also." Secondly, the case of Zambia Consolidated Copper Mines Limited v James Matale l4l where the Supreme Court dealt with the question whether a finding of fact can be considered as a question of law and this is wh at the court said: "There is ample precedent for answering this question in the affirmative. In dealing with a similar problem under the criminal law where the D. P. P. has a similarly ~ --restricted rigi\t of appeal, vie said in D. PAt~ v Bwalya ~ -- -~~~ ~g'andu , ~~a Others s.~~~~ ~gment, i~~ so 'of 1975;--;'3{ :~ . that a finding of fact becomes a question of law when it is a finding which is not supported by the evidence or when it is one made on a view of the facts which cannot reasonably be entertained. In casu, the grounds of appeal appear to be based on findings of fact. A closer look at the same grounds in light of th e aforementioned authorities, shows that in essence the appellant wants this Court to examine whether som e of the findings referred to were not supported by the eviden ce while oth ers were made on a view of th e facts which cannot reasonably be entertain ed. That can only be done upon hearing th e appeal. Therefore in our view the said findings h ave become questions of -J7- law. Accordingly , we dismiss the preliminary application and will proceed to determine the main appeal. Learned counsel for the app ellant Ms . Mutemi relied on the h eads of argumen t filed h erein on 31 st December, 20 16. In support of ground 1, she submitted that the lower court was in e rror when it h eld in favour of the respondent because there was failure on the p art of the r espon d ent to adduce real and / or factual evidence th at indeed th e app ellant was falsifying informa tion. S h e referred us to the letter d ismissing the appellant r eflected on page 46 of the record of appeal which reads in part as follows: "Furthermore, kindly be informed that at the said ~-· hearing, yo~er_e found guifty of the offe ~e of making ~-· ~ .:_~~-:fatse · r~p-~;i/ ; it her ve;b-~~ify-:;;r · in wriif~j :pu~suani ;;';;-,-;;.-; clause E (4) of the G4S Secure Solutions Disciplinary Code. Your dismissal is with immediate effect. " From the above quotation, sh e submitted that the need t o have evidence before disciplinary action is taken is vital as set out in clau se 3.7 of th e respondent's Disciplinary and Grievance Handling Code shown on page 61 of the record of a ppeal which provides as follows: "All persons in supervisory and managerial positions must make thorough investigations of a ll disciplinary as well as dismissal cases before a decision is made regarding t he guilt o r innocence of an employee. -JS- Disciplinary action should only be taken once sufficient substantive evidence exists that a transgression of the company rules has indeed been committed . . . accused failure or refusal to submit a statement will leave no alternative but to hear the case and decide on the strength of the available evidence." In developing her arguments, she referr ed us to a letter from the responden t advising the appellant of the outcome of the appeal shown on pages 66 and 67 of the r ecord of appeal. In the said letter, the respondent was responding to some of the issues that ~-- ,:;.-.. . were raised by the appellant in h is letter of 6 th January, 2012. o~ · of which relat~-s to t he proced~tal unfairness Md/or failure ~-- -· -:~ey ~bot~- parties:_:,~ -~e: first h-~a?:,i?fg.:to call -t h ~ i l?ctik>t~-who ha~~ -:;.-.. conducted th e security audit, Mr. Jim Anderson and Mr. Tony Smillie to testify so that they could be cross examined. She added th at the proceedings of the ex-parte disciplinary hearing con tain ed on pages 71-78 of th e r ecord of appeal clearly show that th ree witnesses were called. However, the evidence that was led by those witnesses was not tested by the appellant through cross-examination. She therefore submitted that the lower Court erred when it h eld that the respondent had discharged its burden of proof. In r esponse to ground one , counsel for the respondent, Mr. Ka bwe argued that the a ppellant is in essence challenging the -J9- I _..,. ~ .... :=:,.;-;-:s ' -~ .- merits of the dismissal. He submitted that the appellant is in viting this honoura ble court to review the case that was before th e disciplinary tribunal which would not be lawful. To fortify this argument, h e referred u s to th e case of Zambia Electricity Supply Corporation Limited v David Lubasi Muyambango 151 wherein the Supreme Court h eld inter alia as follows: "It is not the function of the Court to interpose itself as an appellate tribunal within the domestic disciplinary procedures to review what others have done. The duty of the court is to examine if there was the necessary disciplinary power and if it was exercised properly." ~-- ~-· --~~~ :< - He ~ubifii;fed that ; ri~t3%g€< 10- of th.e "trttdgmen-t the l~CEourt - > · ~-· ~-- found that the respondent h a d the necessary disciplinary powers and that the said powers were exer cised properly. The Court further found that there was no violation of the appellant's terms of employment. He stated that the appellant has not a ppealed against these findings and u rged us to decline to interpose ourselves as an appellate tribunal . He also referred us t o the case of Bank of Zambia v Peter Kambaniya 161 wherein the Supreme Court h eld as follows: "In the case before us, the evidence on record is that the procedures set out in the Disciplinary Code were followed and the only function of the trial court was to determine whether or not the appellant acted fairly and justly in arriving at its decisions." -JlO- On this basis, he submitted that ground 1 must fail. In the alternative, he argued that there was sufficient evidence to show that the appellant was indeed guilty of the offen ce he was charged with . Further, th at the r ehearing of the appellant's case was to enable witnesses with knowledge of the matter to testify . He stated that in particular, the evidence of Mr. J. Ander son on page 73 of the record confirms that the appellant was guilty of m aking a false report either verbally or in writing contrary to section E (4) of the respondent's Disciplinary Code. This was from the audit conducted by Mr. An d erson. Further, the appellant was not consistent with h is stories. He went on to state that the lower Court took into account all the evisier:ice-1-iiat was preserfted before it in ~iving at its Judgment. He ;~;~i€d : us to p-~~~ ~4: 01 the j~~gfi;enr wh~r i ;Tu;~c:ourt observed the following: "Similarly in casu, it is our observation that the respondent exercised its disciplinary power properly in that there were in fact facts established to support the disciplinary measures taken against the complainant. It is quite clear from the evidence on record that the reviewers were misinformed with regard to the keys controls and the access control of the defendant's Lusaka branch. It is further apparent that the defendant as head of cash solutions department failed to e nsure that the security of the branch was maintained to the expected s t andard of t he respondent." -Jl 1- He therefore submitted that the lower Court cannot be faulted for concluding that the respondent's actions were justified in view of the evidence on record. He u rged us to dismiss ground one for want of merit. In considering the 1st ground, we are of the view that the learned trial judge was on firm ground when she held as she did on pages 13 and 14 of th e judgment having based the decision on the authorities of Attorney General v. Richard Jackson Phiri (lll and Zambia Electricity Corporation Limited v. Lubasi Muyambango _(5 l The appellant in his own evidence stated th a t the auditors did discover>ci: number of unk'itigated deficie~cies and the in~grity of ·th; i:itir;:-C~gh -S~-lu1i~h:;'tl~part~ent•~ -~ ~ questio~efl~~·:rCwa~-in evidence that the overall su pervisor i.e. the appellant himself was responsible for the preparations of the mandatory safety procedur es of the respondent's department. This was confirmed by the r espondent's witness Stewart Scott. Therefore we cannot fault the lower Court for its findings. As rightly stated by the responde nt's counsel, the appellant is asking us to review what the respondent h a d done, which is untenable as the case of Zambia Electricity Supply Corporation Limited v David Lubasi Muyambango(5 l applies. We shall deal with grounds two, three and four together for they are in essen ce linked. Under ground two, it was submitted by th e a ppellant's advocate that the evidence on record clearly shows -J12- that the appellant was charged with the offence of falsifying information pursuant to clause E (Sa) of the Disciplinary Code as well as wilful failure to perform work satisfactorily over an extended period despite warning and counselling by m anagement. Furth er that, the evid en ce on falsification was in respect of an audit report on outstanding issues on s ecurity measures and whether or not the same were complie d with. She in this regard referred us to pages 81 and 97 of the record of appeal. She went on to submit that the evidence on record is to the effect that the report in issue was made by a General Manager , Mr. Warren Kondolo and not the a ppellant. She argued furth er that the lower Court found that the appellant as the supervisor ought to be blamed for all the problems arising from > · ~ -- ~ - ~ - his cleQaJ.:_tment. It w~~ her submissi.9n that on the J:?as1s o_f th e "·"'-' •"p - !"e-.; - ""'""' -,;i; .. :"';,-.; . ·""-~ .--'(_ . . . ...... ¢ , • . -.; respond;nt's unreasonable decision, one..,.'is made to believe t&at the appellant was dismis sed for something that h e did not do and this makes the dism issal unfair and unlawful. In s upport of this she referred us to the case of Whi tbread & Co PCL v Mills171 wherein the Court stated as follows: "To be unreasonable, the employe rs conduct would have to be outside the band of unreasonable responses of any reasonable employer. Roughly speaking, t he conduct is reasonable if some decent e mployer would have handled it similarly." In applying the above case , she submitted that the decision by the respondent to dismiss the appellant for falsifying a report -J 13 - prepared by somebody else and which he had no knowledge of was unreasonable and as such the Judge erred in both fact and law by holding that the dismissal was fair. In responding to ground two, Mr. Kabwe reiterated the principle laid down in the Muyambango case. He went on to submit that the record shows that the respondent's contract was terminated because of the falsehood or untruthfulness in his response to the issues that were raised by the auditors and that his dismissal had nothing to do with the contents of the report that was written by his subordinate, Mr. Warren Kondolo. This is confirmed from the charges that were levelled against him reflected on p age 125 of the record of a ppeal as follows: ~ - - ~ - - ~ -- ~ - - -~~$" ...:~ -~: . ,,. --~; ~ .~ -: : ~ _""·-:. ~ . ~ .: ,., .:;:;~ --~ < - "In the rifontfi of Novert'iber,- 2011, while a"ttending ·1:-o the Group Cash Audit Review (27th October 2011) officials it is alleged that: 1. On two occasions you mislead (sic) the auditors and gave false reports/information to the reviewers as follows: a). That the recommended security measures at the branch were in place when in actual fact not. Refer to item 34 of the report on outstanding issues and recommendation. b). Contrary to the MSP self-assessment for Zambia that you were instrumental in submitting where controls were described as fully compliant in every -J14- respect. Refer to item 34 of the report on outstanding issues and recommendations. As such given that integrity is on G4S' core, you conducted yourself in breach of the disciplinary provisions and are hereby charged with the offence "making a false report either verbally or in writing" pursuant to section E (4) of the G4S Secure Solutions Disciplinary Code." He clarified that the appellant was dismissed on the basis of the verbal reports given d u ring th e audit. The appellant's admission ~ -·was further ~ onfirmed by l1he first two )illitnesses at tj;l_e -~"-w- :=:c1isciplin~:Pf~~ng-and tb'.~tltn:!'!3: is..refle~tetl•e r1;-pages 70. tcr% :~ · the record of appeal. That evidence was confirmed by the appellant h imself in his evidence in chief at pages 279 to 281 of the record of appeal. Lupapa Kabezya Lewis also confirmed it in h is evidence reflected on page 288 and 298 under cross examination. Counsel submitted further th at the lower Court had properly directed itself in arriving at its Judgment. He argued that th ere was no need for th e Cou rt to consider the allegation th at the report was prepared by another employee. To fortify this he referred us to th e case of Zambia Radiological and Imaging Co. Ltd and others v Development Bank of Zambia18l wherein the Supreme Court held: -JlS- "In our view it is not a question of the judge revealing his mind on all matters regardless of t heir relevance to t he issue requiring determination." Counsel argued in th e alternative that th e appellant as the h ead of Cash Solutions was r esponsible for the flaws arising from th e department including th e flaws arising from the r eport prepared by his subordinate. The trial judge was therefore on firm ground when she held that there was failure on the part of the appellant as overall supervisor to ensure th at the security of the branch was m aintained. _;,_· He went on ~ - state that th@! · app ellant's c()tltention that t,lqe ·· ,:::.:¢': ~clismissctl -\X,~~-~r~ngful · is~ht~able as ·· tlf~~~ -no b-~ea:cll ·:]5f : the laid down disciplinary procedures by the respondent. He added th at the appellant's claim for unfair dismissal must fail because it does not fall within the provisions of section 108 of the Industrial and Labour Relations Act (1l and he implored us to dismiss the second ground of appeal. As r egard s ground three, the a ppellant's advocate submitted th at the respondent's witness Mrs. Louise, admitted during cross examination that the a ppellant did not undergo induction training before and/ or after commencement of his duties. She drew the Court's attention to pages 105 and 106 of the r ecord of appeal. That at page 106, the initial findin gs were that there was no falsification but an elem ent of negligence and it was recommended that the appellant be warn ed. In addition, the -J16- record of appeal at pages 17-30 shows the respondent's position thus: "Ambiguity ITO the allocation of responsibility in the department; it must be not ed that the individuals concerned have all gained experience in cash 'on t he job' so to speak and as such their interpretati on of the need and the extent of the need is blurred at best. The need for training and development/ exposure to working operations cannot be understated." She therefore contended that the appellant was required to ~ -- undergo traiomg to enable him carry out hiJl_·duties efficien_;.l_y. -~~ ~ ~Th© fa~t ·i 1mC1ie· d id ~oP'·,go:;th'.r o.ugh --arr-~tl)in.ing _makes;: ·UJs . dismissal unfair and that the lower Court overlooked that fact. Mr. Kabwe responded as follows; the audit review was carried out sometime in 2011 as a follow up to the previous security audit. This was supported by eviden ce on record led by Stewart Scott shown on pages 71 and 73 of the record of appeal. Th e same was supported by the appellant's own evidence on page 279 of the record of appeal as follows: " ... In November 2011 we received the security Manager from London to Cash Solutions department. This was a follow up visit from 2010 ... " -J17- It was therefore counsel's submission that it was incumbent upon the a ppellant as Director of Cash Solutions to put in place procedural guidelines for members of staff regarding security and operational compliance but he failed. In support of grou nd 4, Ms. Mutemi submitted tha t the evidence on record shows that the appellant was subjected to a fresh charge which was communicated to him on 24th January, 2012. Subsequently, on 24th January, 2012 the appellant through his advocates advised the respondent that he would not attend the hearing that was s cheduled for 25 th January, 2012, on the same day the appellant was never informed by the respondent whether they would proceed in his absence or not. The a ppellant received ~ ~_1eft~r from tbe¥ _ _re~~ndent d?,t~_d 1cith Februarx1 2{112 __ advisii:ig _ ~-- -·~ - ·"",~ him that there was a·"liear1ng and thaf -he was found ~ilty of the ._.,:,._:?:,;i{ ·~ < . ..,_.._;;, ,;i{ -~ -< . ·~ < . - !"-:...~ . "'"'-.,~ ""-;;,~ . · offence of making a fals e report. She went on to submit that the same was in breach of the rules of natural justice. She relied on Halsbury's Laws of England,(1l 4 th edition vol 1, paragraph 14 which reads: "Audi alteram Partem -the rule that 'no man shall be condemned unless he has been given prior notice of the allegation against him or a fair opportunity to be heard is a cardinal principal of justice". She concluded that there was an unbalanced evaluation of evidence by t he Court below where only the flaws of the appellant and not those of the respondent were considered. She directed -J18- our attention to the case of Attorney General v Marcus Kampumpa Achiume 191 where it was held as follows: "An unbalanced evaluation of e vidence where only the flaws of one side but not of the other are c onsidered is a misdirection which no trial Court should reasonably take and entitles the appeal Court to interfe re ." She also referred u s to the case of Zulu v Avondale Housing Project Limited 1101 where t h e Supreme Court stated inter alia th at: ~ --"I would exp~ss the hope tjl_at trial courts~ _will always ~ .:_-; ¢'" !'-be~t- i_n mind ::that_ it is -t hei~ uty to·· adju<jjcat~ !1PO&-;-¢': --:~ . ~-. every aspect of the suit between the parties so that every matter in controversy is determined in finalit y. A decision which, because of uncertainty or want of finality, leaves the doors open for further litigation over the same issues between the same parties can and should be avoided." She therefore urged us to uphold the appeal. In response to gr ound 4 , it was argued that the appellant relied on his own d efault to claim that h e was not afforded an opportunity to be heard . The first hearing had a number of irregularities and was later set a side. The second hearing was -Jl9- done in accordance with clause 3 .1 2 . 1 of the r espondent's disciplinary code. The appellant refused to exculpate himself verbally or in writing and refused to attend th e hearing on 20 th February, 20 12 despite being called upon to do so . This evidence is on p ages 137 and 141 of the record of appeal. Instead of attending the h earing, the appellant decided to institute legal proceedings to r estrain the respondent from proceeding with the hearing which action was dis missed . On the issue of whether the appellant was rightly ch arged, we cannot agree more with the trial Court th at the appellant being in charge of his departm ent, it was his responsib ility to ensur e that th e security of the branch was not compromised. ~ -. ~ - . ~ - . . _ _j/a_ . .. -:.~~~-satis;i~aif~i :-~he a;p; h~ '\vcrs ·gi;e~ufficient · ti~i,;~ ·~ -< :··_ within which to avail himself for the h earing by letter dated 2 0 t h January, 20 12 but he freely and voluntarily on his legal counsel's a dvice decided not to attend. Subsequently, by letters dated 15 th and 18th February, 201 2 h e was informed of the rescheduled d ate of h earing and he still withou t reason a ble cause opted not to attend the h earin g . We th erefore h old that the rules of natural justice were complied with . We reject the appellant's evidence th at h e could n ot atten d the disciplinary hearing b ecause there was an initial h earing that was conducted because the terms and conditions under which he was serving clearly state under clause 3. 12 .1 th at; -J20 - "In reaching a decision on the review .. . Where a review of a disciplinary enquiry is lodged, t he representative of the Human Resource Departmen t will be entitled to order t hat a new disciplinary enquiry be convened should it be deemed necessary t o do so. " It is clear that the respondent complied with the foregoing procedures. We will now address the issue of whether or not th e dismissal was wrongful, unlawful or unfair . In the text book; Employment Law in Zambia121 the learned author has defined wrongful and unla.ir dismissal a,™1· distinguished ;he two as follow~~ -::..~-.;i;, .• :i,..x._ : ~ .:_:.;-.;i;. ... -x._ .. - -"The - concept' of wrongful dis~issal is the -product of ~ -~ -.;i;, -•~ ~ .:."'~ .• :i,..x._ .• . : - "" -:~" ,)." , ,-~ ,( common law ... when considering whether a dismissal is wrongful or not, the form , rather than the merits of the dismissal must be examined. The question is not why but how the dismissal was effected." "Unlike wrongful dismissal which looks at the form, unfair dismissal looks at the merits of the dismissal ... in other words, under unfair dismissal, the courts will look at the reasons for the dismissal to de termine whether t he dismissal was justified or not." It is trite law that unlawful dismissal occurs when a statute affecting the employment contract is breached. In the present case the question of unlawful dismissal is neither here nor there. -J21- In the case of The Attorney-General v Richard Jackson Phiri111l th e Supreme Court held as follows: "Once the correct procedures have been followed, the only question which can arise for the consideration of the Court, based on the facts of the case, would be whether there were in fact facts established to support the disciplinary measures since any exercise of powers will be regarded as bad if there is no substratum of fact to support the same." In casu, th e sequence of events leading to the dismissal of the ~-· appellan t. Avas that he w~ · afforded an optportuni ty to e~lpate .-;-=,,~ ,:..-.. : - · him~err'1is:e--st~-blish~d: ilt t~e '.~arlier ~p ~~c:£:fuis-Judgrtt~t~bich - opportunity h e voluntarily refused to undertake. The respondent conducted itself in accordance with th e Disciplinary Code. The respondent 's decision to dismiss the appellant was based on reasonable grounds. Taking into account the case of Whitbread & Co. Pie v. Mills l7 l we hold that the r espondent's condu ct was reasonable for that is what any decent employer would have done under the circumstances. We are satisfied that the respondent h ad the necessary disciplinary power which it exer cised fairly. We have considered the issue of the appellant having not been t r ained for the j ob. The view we take is th at h e held himself out as a competent person as h e had accepted his appointment as head of department. The lower Court properly evaluated the evidence before it in a balanced m ann er. As a matter of fact he -J22- knew the security measures that were supposed to be taken from the previous audit of 2010 but overlooked them. The excuse that he was untrained is quite lame under the circumstances. Clearly the appellant made serious omissions warranting his dismissal. For the reasons given herein, the appeal fails entirely and we hereby dismiss it with costs which may be agreed upon or taxed . -"'-. ~ :;_-;~ -~ • ••• ••• • !'!(/~ ;..._' . ~ ~ -~-;~; -,::~ ::_ -- •• • • • C. K. MAKUNGU IJRT OF APPEAL JUDGE -"'- J . CHASHI COURT OF APPEAL JUDGE -J23-