Dean Chanda v Standard Chartered Bank Ltd (Appeal 111 of 2002) [2003] ZMSC 124 (4 June 2003)

IN THE SUPREME COURT OF ZAMBIA APPEAL NO, 111/2002 HOLDEN AT NDOLA [CIVIL JURISDICTION] BETWEEN: Dean Chanda and Appellant Standard Chartered Bank Limited - Respondent Coram: Sakala, CJ, Mambilima and Chitengi, JJS. On 4th December, 2002 and 4th June, 2003. For the Appellant: Mr. L. Lisimba of Lisimba and Company. For the Respondent: Mr. N. Banda of Banda, Watae & Associates. JUDGMENT Mambilima, JS delivered the Judgment of the Court. Authorities referred to: (1) Copperbelt Bottling Company vs Phinias Fombe Supreme Court of Zambia Judgment of 1998. (2) ZCCM vs Richard Kangwa SCZ No. 25 of 2000. This is an appeal from the decision of the Industrial Relations Court which decided that the Appellant was properly dismissed by the Respondent because he was found to have been dishonest and that he had failed to prove his case on a balance of probability that he was dismissed on discriminatory grounds as he alleged in his notice of complaint to the Court. The evidence leading to the dismissal of the Appellant appear to be common cause. The Appellant was dismissed summarily from the employment of the Respondent on 15th June, 1998. His appeal against the dismissal to the Appeals Committee of the Respondent bank was not successful. From the evidence and documents on record, the Appellant was first charged with misconduct on 20th March, 1998. In this charge, it was alleged inter alia, that Appellant "with wilful knowledge of your indebtedness, by way of an authorized overdraft, you willfully chose to divert your salary to another Account by altering Head office prepared schedules from Account Number 0108 0202 39008 to your Savings Account Number 0120-3811-8500, thus averting Saving your unauthorized overdraft for the month of March, nor making provision for standing orders. This practice is tantamount to cheating . Under the circumstances, you have therefore been charged with misconduct act in terms of paragraph (e) of the Grievances and Disciplinary Code." The Appellant was given 24 hours in which to exculpate himself. The Appellant was further charged with the offence of dishonesty under Section 6.2 of the Disciplinary Code. It was alleged that on 23rd March, 1998, the Appellant wilfully chose to divert his salary "...to another account of the Head Office prepared salary schedule." A disciplinary tribunal was constituted to hear his case. The tribunal sat on 27th May, 1998 and 1st June, 1998. The earlier charge of misconduct was withdrawn and the Appellant was tried on the second charge of dishonesty. The Appellant, together with other workers who worked under him had obtained authorized overdrafts. It was resolved that the overdrafts would be cleared by the bonuses which the employees were to be paid for that year. Some members of staff however, including the Appellant diverted their bonuses to their private Savings Accounts, thereby failing to liquidate the overdrafts. According to the This is an appeal from the decision of the Industrial Relations Court which decided that the Appellant was properly dismissed by the Respondent because he was found to have been dishonest and that he had failed to prove his case on a balance of probability that he was dismissed on discriminatory grounds as he alleged in his notice of complaint to the Court. The evidence leading to the dismissal of the Appellant appear to be common cause. The Appellant was dismissed summarily from the employment of the Respondent on 15th June, 1998. His appeal against the dismissal to the Appeals Committee of the Respondent bank was not successful. From the evidence and documents on record, the Appellant was first charged with misconduct on 20th March, 1998. In this charge, it was alleged inter alia, that Appellant "with willful knowledge of your indebtedness, by way of an authorized overdraft, you willfully chose to divert your salary to another Account by altering Head office prepared schedules from Account Number 0108 0202 39008 to your Savings Account Number 0120-3811-8500, thus averting Saving your unauthorized overdraft for the month of March, Appellant and his workmates were given a chance to make good their misdeeds, the Appellant went ahead to withdraw all his money from his Savings Account, a move which was calculated to avoid servicing his loan obligations. The Court further observed that the Appellant ought to have acted in a prudent manner and that as a banker, he ought to have been a man of integrity. The Court did not also agree that the Appellant was discriminated against on the basis of his union activities because it found that the Appellant had committed the offence of dishonest conduct. The Court further found that there was no breach of the conditions of service and the rules of natural justice because the Appellant was charged and heard by the Disciplinary Committee and later by Appeals Committee. Relying on the case of Copperbelt Bottling Company vs Phinias Fombe (1) Supreme Court Judgment of 1998, the Court found that the Appellant was a dishonest employee and it was therefore in order for him to be dismissed. In his amended Memorandum of Appeal, the Appellant has advanced two grounds of appeal namely: that the Court below erred in law and in fact in holding that failing to meet loan obligations under the conditions upon which the Appellant served was dismissable ; and that the Court below erred in law when it did not consider the complaint under Section 85 of the Industrial and Labour Relations Act to prove the unfair and wrongful dismissal, but instead relied only on Section 108 and dismissed the complaint on that basis when in fact the complaint was also brought under Section 85 of the Act. Submitting in support of the first ground of appeal, Mr. Lisimba stated that the Respondent alleged that the Appellant had willfully diverted his salary thereby failing to meet his loan obligations. He submitted that the Appellant was not responsible for the posting of salary. For this submission, Mr. Lisimba referred us to page 138, line 27 of the record of appeal in which it is stated that the Appellant was not a Supervisor or a Posting Clerk. According to Mr. Lisimba, this means that the Appellant was therefore not responsible for the diversion of his salary. He also referred us to page 104 of the record of appeal which comprises part of the minutes of the tribunal which heard the Appellant's case. In line 10, it is stated that a Mr. Mbelenga erroneously blocked the Appellant's Current Account instead of the Savings Account. Mr. Lisimba further submitted that the punishment for the offence of misconduct with which the Appellant was first charged was a verbal warning for a first breach and not dismissal. He contended that for the charge of dishonesty which was raised later, the Appellant should have been given a hearing. For this submission, he referred us to Selwyns Law of Employment, 8th Edition on page 241 in which it is stated that an employee is entitled to know the nature of the charge against him in sufficient detail to enable him prepare his case. On the second ground of appeal, Mr. Lisimba submitted that the Appellant pleaded Section 85 in his complaint, but the Court never considered it. According to Mr. Lisimba, this Section gives the Court power to inquire into and adjudicate upon any matter. He argued that under Section 85, the Appellant's complaint was properly founded and the arguments advanced showed that the Appellant was wrongly and unfairly dismissed. Mr. Lisimba, argued further that had the Court correctly addressed itself to the provisions of this section, it would have arrived at a decision that the complainant was unfairly and wrongfully dismissed. He submitted that by failing to consider Section 85 in its Judgment and findings, the Court fellow into error. Relying on the case of ZCCM vs Richard Kangwa (2) Mr. Lisimba submitted that the Industrial Relations Court is mandated to do substantial justice. He went on to state that the dismissal in this case was meant to get rid of the Appellant so that he was not able to get his retirement benefits. In reply, Mr. Banda for the Respondent submitted on the first ground of appeal that the action committed by the Appellant was dismissable. He referred us to paragraph 6.8 of the conditions of service which shows that the penalty for dishonesty is summary dismissal. Mr. Banda also referred us to the minutes of the Appeals Committee on page 109 of the record of appeal which found that the Appellant had committed a serious financial offence warranting his dismissal. He stated that the particulars of the offence of dishonesty were that the Appellant willfully diverted his salary from one account to another and thereby avoided to service his staff obligations on overdrafts. According to Mr. Banda, the failure by the Appellant to meet his debt obligations was not accidental. He referred us to paragraph 642 of Halsbury's Laws of England in which Lord Hailsham stated: "....there is no fixed rule of law defining the degree of misconduct which will justify dismissal. (An employee) may be dismissed if he is guilty of fraud or dishonesty in connection with his employer's business". On the second ground of appeal, Mr. Banda argued that even if the Court below did not refer to Section 85 by naming it, it extensively dealt with other areas of the Appellant's complaint other than the issue of discrimination. He referred us to page 15 line 12 of the record of appeal, which is a portion of the Judgment in which the Court acknowledged that it was a Court of substantial justice. Mr. Banda went on to state that on page 16, the Court dealt with the issue of fairness and unfair dismissal. According to Mr. Banda, this shows that although the Court did not expressly mention Section 85 of the Act, it dealt extensively with other areas of the complaint other than discrimination. We have considered the Judgment of the Court below and the submissions by Counsel. On the first ground of appeal, we find that the evidence on record conclusively established that the Appellant's overdraft was not serviced because he had withdrawn all the money which had been diverted to his Savings Account. It is common cause that this overdraft was to be serviced by the bonuses earned for the year and that the Appellant together with other employees diverted these bonuses from their Current Accounts to their Savings Accounts to evade serving the overdrafts. It is on record that while other employees went back to negotiate and agree on how their overdrafts would be serviced, the Appellant never did so. Instead he withdrew all the money thereby importing an element of dishonesty in his conduct. We cannot therefore fault the Court below for having upheld the Respondent's action against the Appellant. The Appellant was charged with dishonest conduct well before the hearing by the tribunal and he was afforded an opportunity to appeal against the finding of the tribunal. It cannot therefore be seriously argued that the Appellant did not know the nature of the charge against him. According to the applicable disciplinary code on page 82 of the record of appeal, the stipulated punishment for a first breach of the offence of dishonesty is summary dismissal. We therefore find no merit in the first ground of appeal. Coming to the second ground of appeal, we note that the Appellant filed an amended Notice of Complaint under Section 108 and 85 of the Industrial and Labour Relations Act. Under Section 85 (2) © of the Industrial and Labour Relations Act, the Court has power to inquire into and adjudicate upon any matter relating to industrial relations. Section 108 empowers the Court to grant relief to an employee who proves that his services were terminated on discriminatory grounds. We have perused the Judgment of the Court below. The Court found on page 16 of the record of appeal that the Appellant had failed to prove that he was discriminated against. The Court went further to find that there was no breach of the conditions of service since the rules of natural justice were followed and that the Respondent acted fairly. The Court was alive to the fact that it was a Court of substantial justice. We therefore agree with Mr. Banda that these considerations went beyond Section 108 of the Act which is on discrimination. In our view, the failure by the Court to expressly mention Section 85 was not fatal and could not vitiate the finding of the Court that the Appellant failed to prove his case. The second ground of appeal also fails. From the foregoing, we find no merit in the whole appeal. It is dismissed with costs to be taxed in default of agreement. E. L. Sakala CHIEF JUSTICE __________ I. C. Mambilima JUDGE SUPREME COURT P. Chitengi JUDGE SUPREME COURT I I I