Musonda v Marasa Holdings Ltd (Appeal 11 of 2016) [2017] ZMCA 124 (24 July 2017)

IN THE COURT OF APPEAL FOR ZAMBIA APPEAL NO. 11/2016 HOLDEN AT LUSAKA (Civil Jurisdiction) BETWEEN: EMMANUEL MUSONDA AND MARASA HOLDINGS LIMITED (T/A INTERCONTINENTAL HOTEL) RESPONDENT Coram: Chisanga JP, Chashi and Mulongoti, JJA On 8th February 2017, 11th April, 2017 and 24th July, For the Appellant: In Person For the Respondent: Mr. N. Ng’andu of Messrs Shamwana & Co. JUDGMENT MULONGOTI, JA, delivered the Judgment of the Court. Cases referred to: 1. Nkhata and Others v. Attorney General (1966) ZR 124 2. Mohamed v. Attorney General (1982) ZR 49 (SC) 3. Zulu v. Avondale Housing Project (1982) ZR 172 (SC) 4. Swarp Spinning Mills Pic. V. Chileshe and Others (2002) ZR 23 (SC) This is an appeal against the Judgment of the High Court, Industrial Relations Division, delivered on 17th August, 2016. By its decision the High Court found, at page 10 of the record of appeal, that “although the complainant (now appellant) lost nothing in terms of monetary benefits which included salary/wages and retirement package, he was nevertheless embarrassed and probably suffered mental torture as weir. The appellant was awarded three months salary as damages for that. The appellant had sued the respondent seeking salary arrears and underpayments of other benefits, compensation for wrongful demotion, costs and any other relief the court may deem fit. The brief background to the case is that the appellant was employed by the respondent in 1985 as a waiter. He worked for the respondent until 31sl January, 2013 when he retired. It was his testimony that during his employment he was promoted and held several positions, like order taker and captain. He was transferred from one department to the other, like on 17th February 2003, from club lounge to front office as a pool waiter on lateral basis. On 1st November, 2004 he was transferred to savannah grill and restaurant from F and B swimming pool, as captain, on lateral basis. It was his complaint that some of the transfers were actually demotions while others were promotions though the salary remained the same. The High Court found as a fact that in 1995 the appellant was confirmed as captain in GO5 grade. In 1998 following change of ownership of the Hotel he was reappointed as captain. Accordingly, that the positions of captain and order taker are higher than waiter. And that in the old structure the position of captain was in the same grade as senior waiters. The trial Court reasoned, therefore, that the appellant’s subsequent transfer to front office as a pool waiter on 17lh February, 2003 was infact a down grade, though it was on lateral basis. As was the transfer from pool section to savannah grill and restaurant on 12th November, 2004. The High Court observed, however, that the appellant retained all the benefits on personal to holder basis. Furthermore, that although the appellant at times acted in the position of supervisor he was never confirmed. The Court concluded, on the totality of the evidence provided, that although the appellant had not lost anything in terms of monetary benefits, which included salary/wages and the retirement package, he was nevertheless embarrassed and probably suffered mental torture as well. The Court then awarded the appellant three months salary in damages, with costs plus interest at short term Bank of Zambia lending rate. Dissatisfied with the Judgment, the appellant filed an appeal before this Court on two grounds: 1. The learned puisne Judge erred when he did not consider the evidence which the appellant submitted, based on his Conditions of Service of the Workers Collective Agreement for Hotel Catering and Allied Workers Union. 2. The learned Judge erred when despite acknowledging the misfortune the appellant suffered awarded him a meagre three months salary. Both parties filed heads of argument. From what we can glean, the appellant, in arguing ground one, contends that page 7 of the record of appeal is clear that he pleaded for salary arrears and under payment of other benefits. At pages 151 to 154, his unshaken evidence showed that his salary was never adjusted, though RW1 tried to justify that he was given acting allowances. Before retirement he worked for three years without being paid acting allowances. He retired as supervisor. The Court should have awarded his claims for under payment as opposed to a lump sum of three months salary which was not pleaded for. As to ground two, it is contended that the three months salary award is too little considering that the appellant served for twenty seven years plus. In response, learned counsel for the respondent argues that ground one should fail as the appellant failed to demonstrate how the salary arrears accrued to him. At trial, the appellant had testified at page 151 of the record of appeal from line 10, that “in 19851 was employed as a waiter and rose to supervisor. The salary never changed’. According to counsel the appellant is of the view that he is owed salary arrears on account of having been appointed to the position of supervisor. However, counsel contends that consideration of the documentary evidence before the lower Court, makes it plain that the appellant was never appointed as supervisor. There was no letter of appointment written to the appellant advising him of his appointment to the position of supervisor from the respondent’s director/manager human resource. It is contended that if he was so appointed, he would not have described himself as captain in his letter, to the respondent’s human resource director, at pages 104 to 106 of the record of appeal. Thus as found by the lower Court at page 10, that though at times he acted as supervisor he was never confirmed and his substantive position was that of captain. It is the further submission of counsel that it is a long held position of law that a Court on appeal will always be loathe to disturb or lightly interfere with a finding of fact of a lower Court. The plethora of authorities on this principle include the case of Nkhata and Others v. Attorney General1 where it was stated that: “A trial Judge sitting alone without a Jury can only be reversed on questions of fact if (i) the Judge erred in accepting evidence, or (ii) the Judge erred in assessing and evaluating the evidence taking into account some matter which he should have ignored or failing to take into account something which he should have considered, or (iii) the Judge did not take proper advantage of having seen and heard the witnesses, (iv) external evidence demonstrated that the Judge erred in assessing the manner and demeanour of witnesses. ” According to counsel, this is not a proper case for the Court to disturb the finding of fact that the appellant’s substantive position was of captain and not supervisor. The appellant even admitted that he only acted as supervisor and was paid acting allowance. Furthermore, that no evidence was led to show that the appellant acted for a continuous period of three months in the position of supervisor, which would have entitled him to receive the wages of supervisor. Accordingly, in the absence of any evidence to the contrary, the lower court cannot be faulted in not awarding salary arrears as the appellant was paid according to his position of captain. With respect to underpayment of benefits, counsel contended that the appellant admitted having received his terminal benefits for the period 1985 to 1998 from the previous owners of the hotel. Then the respondent offered the employees, including the appellant, new contracts of employment. However, the Collective Bargaining Agreement at pages 112 to 130 of the record of appeal, governed his employment. That the grade structure was still being incorporated in the Collective Bargaining Agreement as at 2013, despite the reorganised structure appearing on page 99 of the record of appeal taking into effect in 2006. According to clause II, the basic salary rate for a supervisor who was in grade 8 was K2,005.74 (rebased). However the appellant’s salary at page 5 of the record of appeal showed that he was a captain in grade 5 with a basic pay of K2,163.58. According to counsel, it is evident that though the appellant retired as a captain in grade 5, his salary was nonetheless higher than a supervisor in grade 8. Thus, the trial court cannot be faulted for finding that there was no underpayment of benefits to the appellant. It was the further submission of counsel that the appellant’s position before this Court is that he was wrongfully demoted by the respondent during the tenure of his employment. According to counsel the respondent had power to transfer the appellant. The transfers were lateral as the appellant’s salary and conditions of service remained the same. Thus, the lower Court cannot be faulted when it found that the appellant retained all benefits of the position of captain during the course of the transfers. The appellant failed to prove that his conditions of service were altered to his detriment during his transfers. In arguing ground two, counsel contends that the lower Court did not make any finding of any breach whatsoever by the respondent of the terms and conditions of employment. The basis of the award for embarrassment and mental torture appeared to stem from the lateral transfers, which the lower Court considered to be a down grade. In the absence of any aggravating circumstances, the lower Court cannot be faulted for awarding only three months salary in damages. At the hearing of the appeal, the appellant submitted in relation to ground one that page 26 clearly shows that he was promoted but was not paid anything. At page 76 it shows that no salary rise was given after his promotion to position of captain in 1995. In 1998 he was verbally promoted but was not given a letter nor job description. The position of captain was imposed on him. The respondent even started evaluating him as captain and not supervisor and the letters at pages 31 and 32 prove that he was a supervisor. The document at page 65 was not considered by the lower Court, instead the Court asked him to prove the underpayment and come up with the amounts. As to ground two, he contended that his payslip as supervisor at page 51 compared to the one at page 61, is clear that his subordinate was paid more than him. We considered the arguments by both the appellant and learned counsel. The pertinent issue this appeal raises is whether the Court below erred in law and fact when it found that, though the appellant acted as supervisor he was never appointed to that position and never lost anything in terms of monetary benefits. Further, that he was nevertheless embarrassed and probably suffered mental torture for which he was awarded three months salary in damages. The appellant’s case, in essence, is that he was underpaid his retirement package because he was paid at a low position of captain and not that of supervisor which he held as the letters at pages 31 and 32 of the record of appeal show. Furthermore, that his salary was never adjusted when he was promoted and he was never paid acting allowances whenever he acted in a higher position. We wish to state from the outset that it is a fundamental principle of law that he who asserts must prove his case, whatever maybe said of the opponent’s case. See Mohamed v. Attorney General2 and Zulu v. Avondale Housing Project3. A perusal of the record of appeal, clearly reveals the numerous letters the appellant wrote to the respondent regarding salary increment, underpayment of acting allowances and what he termed promotions and demotions which the respondent contends were lateral transfers. The appellant contends that in the letter dated 12th July, 2007 at page 32 of the record of appeal the respondent referred to him as supervisor and the letter at page 31 they invited him to attend a training for supervisors. We note that the letter at page 32 is a letter of introduction to the Bank confirming that the appellant was an employee of the respondent and that he be given a loan. The letter at page 31 is indeed an invitation for him to attend a workshop for supervisors. However, we note as contended by the respondent’s counsel, that the appellant did not adduce evidence to prove that he was appointed supervisor. What is clear from the record is that he acted as supervisor in 2007. He was paid responsibility allowance for acting as supervisor as the preparation for pay documents for the months of September, 2007 and October, 2007 show at pages 100 and 102 of the record of appeal. His testimony during trial was that he acted as supervisor as stated at page 153 lines 23 to 24. We find therefore, that the Court below did not err in law and fact when it found that the appellant was never appointed supervisor, though he acted in that position. The transfers were lateral and not demotions as expressly stated in the several letters at pages 36 to 39 of the record of appeal. We note further that the retirement package was computed using the basic salary last drawn as provided under clause 5(g) of the Collective Bargaining Agreement of 2012 to 2014 at page 117 of the record of appeal. The appellant testified at page 154 line 24 of the record of appeal, when shown his computation of terminal benefits that “it seems I was paid above the basic pay” Thus, we uphold the finding that his substantive position was of captain and that he was not underpaid. Furthermore, as canvassed by Mr. Ng’andu, the letter at pages 104 to 106, which he wrote to the respondent on 3rd May, 2012 about a year before his retirement, he clearly stated his position as room service captain. We note that the High Court found as a fact that the appellant’s subsequent transfer to front office as a pool waiter on 17th February, 2003, was infact a down grade, though he moved on lateral basis and so was the transfer from swimming pool to savannah grill and restaurant. These findings are on pages 9 to 10, lines 25 to 30 of the record of appeal. Thus the High Court was on firm ground when it found that he lost nothing and only suffered embarrassment and probably mental torture. Regarding the award of three months salary as damages for embarrassment, we wish to state that it is settled law that the normal measure of damages in employment cases is the notice period. It is also settled law that an appellate court can only reverse findings of fact by a trial Court if they are perverse and not supported by evidence as submitted by Mr. Ng’andu. Thus, though the Court found that the appellant did not lose any monetary benefits however, on the facts and evidence before it, the Court found that his transfers from front office to pool waiter and from swimming pool to savannah grill and restaurant were a down grade and that he was embarrassed and probably suffered mental torture for which he was awarded three months salary as alluded to. We find that the court was on firm ground and we cannot therefore interfere with his finding and award of damages. The appellant’s conditions provided for one month’s notice, or pay in lieu as shown on letter of appointment at page 80 of the record of appeal. The trial court rightly, awarded more than the notice period after it found that he was embarrassed and probably suffered mental torture. See Swarp Spinning Mills Pic. v. Chileshe and Others4. We find no merit in ground two as well. In the net result the appeal is dismissed. Each party to bear own costs. F. M. CHISANGA JUDGE PRESIDENT COURT OF APPEAL COURT OF APPEAL JUDGE COURT OF APPEAL JUDGE