Emmanuel Simenda and Anor v Public Services Pensions Fund Board (Appeal 166 of 2016) [2019] ZMSC 339 (2 August 2019)

J1 IN THE SUPREME COURT OF ZAMBIA APPEAL NO. 166/2016 HOLDEN AT LUSAKA (Civil Jurisdiction) BETWEEN: EMMANUEL SIMENDA GEORGE MUMBO AND 1st appellant 2nd APPELLANT PUBLIC SERVICE PENSIONS FUND BOARD RESPONDENT Coram: Hamaundu, Malila and Kaoma, JJS On 9th July, 2019 and 2nd August, 2019 For the Appellants : Mrs K. Mweemba - Chileshe, Messrs For the Respondents: Mrs E. M. Kapuka, Legal Counsel Mweemba Chashi & Partners JUDGMENT HAMAUNDU, JS, delivered the Judgment of the Court Cases referred to: 1. Ndongo v Mulyango and another (2011) 1 ZR 187 2. Attorney General v Richard Jackson Phiri (1988 - 1989) ZR 121 3. Zambia Electricity Supply Corporation Limited v Muyambango (2006) ZR 22. 4. Chimanga Changa Limited v Ng’ombe (2010) 1 ZR 208 5. National Breweries Ltd v Phillip Mwenya (2002) ZR 118 6. Kambatika v Zesco, Appeal No. 14 of 2000 (unreported) 7. Samson Katende & Anor v NFC Africa Mining Plc (2011) 2 ZR 112 8. Simon Mukanzo v Zambia Consolidated Copper Mines, SCZ No. 133 of 1999 J2 The appellants appeal against the judgment of the Industrial Relations Court which dismissed their complaint seeking an order declaring their dismissal from employment with the respondent unfair and unlawful. The appellants were employed by the respondent in 2003 and 2009 respectively. The respondent is a statutory board that manages pensions for civil and public servants, generally. As part of its management functions, the respondent had a department which invested pensions into ventures that brought in returns on the investments. One of the ventures was the provision of loans to civil and public servants. For these, the applicants were required to provide real property as security. What triggered the dismissal of the appellants was a complaint lodged by a soldier based in Kabwe named Peter Daka. Peter Daka had applied for a loan for which he had provided a particular property as security. Seeing that the processing of his loan application was taking unduly long, he approached a member of the army, based at Lusaka, who was co-ordinating the scheme for all members of the Army. The said member told Peter Daka that there were some officers at the respondent’s head office who facilitated the quick processing of loan applications, at a fee. Among the officers named were the two J3 appellants and a colleague of theirs named Francis Mwewa. He went on to give Peter Daka some names of his fellow soldiers who had benefitted from such arrangements. Peter Daka came to Lusaka and went to the respondent’s head office. At this point, the accounts of what transpired are not clear. However, the appellants’ version is that Peter Daka did see them and that, at that time, his file could not be found; that the 1st appellant advised Peter Daka to make a fresh application on a new file (which Peter Daka appears to have done). Nevertheless, Peter Daka was not happy with the way his issue was handled at that level. He took his complaint further up, namely to the Loans Officer and the Investment Manager. It seems that, while the complaint was being dealt with at that level, Peter Daka’s old file was found. Peter Daka said that the amount indicated thereon and the property that was said to be provided as security were not the ones that he had written on his application. In short, his position was that the original application had been replaced with a forged one. He went on to tell the Loans Officer and the Investment Manager what the member of the Army had told him about the two appellants and other officers. He also J4 gave the names of the other soldiers that were said to have benefitted from the facilitation by the appellants. Investigations were instituted. In the meantime, the three people who had been mentioned, namely, the two appellants and Francis Mwewa, who was a Loan Assistant, a position immediately below that of the appellants, were suspended. The three employees were charged with, mainly, two offences; Dishonest conduct and Gross negligence. The offence of dishonest conduct was said to be constituted by any one of several acts, which ranged from defrauding, or attempting to defraud, the respondent, to forgery. A disciplinary hearing was held in January, 2013. We must note here that, shortly after the hearing, the appellants wrote to the respondent’s chief executive officer complaining about the conduct of the hearing; the chief complaint being that they were not given opportunity to cross-examine the witnesses, or to be shown the documents that were adverse to their case. The disciplinary committee made its findings. The other employee, Francis Mwewa, was the one who was found to have forged the application on Peter Daka’s file; and, therefore, his dismissal was based on that act, among others. The 1st appellant was not found to have forged the documents. He was also not found with a case of J 5 corruption. Further, he was not found with any case of removing, altering or destroying official records with malicious or fraudulent intentions. But the 1st appellant was found with a case of defrauding and also attempting to defraud the respondent. In the case of defrauding, he was found to have suppressed deductions on the account of a client named Bruce Andy Ntambo. In the case of attempting to defraud, he was found to have attempted to defraud a client, namely, Peter Daka. The 1st appellant was also found with a case of abuse of office with regard to his dealings on Peter Daka’s file. All these three offences were said to constitute the general offence of dishonest conduct, for which the 1st appellant was dismissed. The 1st appellant was, further, found with a case of gross negligence. According to the committee, the appellant was negligent in his handling of Peter Daka’s file when he knew the truth surrounding it. The committee also found that the 1st appellant was negligent in suppressing the deductions on Bruce Andy Ntambo’s account. For this offence, however, the penalty was a written warning. The 2nd appellant, too, was found with a case of defrauding, or attempting to defraud, the respondent, in that when Peter Daka refuted the documents on his file, the 2nd appellant, instead of investigating what had gone wrong, merely asked Peter Daka to j 6 provide alternative property as security. In the committee’s view, this showed that the 2nd appellant had knowledge of the false documents. The 2nd appellant was not found with a case of corruption, or the case of removing, altering or destroying official records with malicious or fraudulent intentions; or indeed the cases of forgery and abuse of office. So, in his case, the case of defrauding was the one that constituted the general offence of dishonest conduct, for which he was dismissed from employment. However, like the 1st appellant, the 2nd appellant was found with a further case of gross negligence with regard to his handling of a file for a client named Minyoyi Mundia. The penalty for that offence was a written warning. The appellants appealed to the Appeals Committee which, given the complaints by the appellants to the Chief Executive Officer, decided to hear the appeal de-novo in order to allow the appellants to cross-examine the witnesses. The committee also called other witnesses who had been unavailable at the hearing of the first instance on account of having been away on official duties. The committee also asked the appellants to state the witnesses that they wanted to be re-called. The appellants did so; the 1st appellant, in particular, called his supervisor, Mr Jere. The appeals committee upheld the decision of the disciplinary committee. The appellants J7 appealed to the Administration and Staff Committee of the respondent’s board of directors. This organ, too, upheld the dismissals. The appellants then commenced an action in the Industrial Relations Court, seeking an order of re-instatement or order for damages on the ground that their dismissal from employment was unlawful and unfair. The appellants’ testified on behalf of both of them. His testimony was mainly focused on pointing out what he thought were shortcomings regarding the disciplinary and appeals process; and dwelt very little on the facts surrounding the conduct on which he was dismissed. His position was simply that the respondent had not proved its allegations against him. He agreed, though, in cross­ examination, that he met Peter Daka when the latter came to find out why his loan application had taken long to be approved. He said, however, that, because the file was missing and because Peter Daka was alleging that some documents on the file were not his, he requested him to submit fresh documents. He denied soliciting any money from Peter Daka. The 1st appellant’s supervisor, Kennedy Jere, the respondent’s Loans Officer, testified for the respondent. He told the court that J8 Peter Daka brought a complaint to him about the activities of the two appellants and their junior, Francis Mwewa. He told the court that Peter Daka refuted the loan application which was on his file; and that it was discovered that the application was filled in by Francis Mwewa. He informed the court that Peter Daka was asked to put the complaint in writing; and that that was the beginning of the investigation that ensued. In its judgment, the court below examined the record of proceedings at the Appeals Committee stage. It looked at the evidence of the witnesses that had been called to testify at the disciplinary hearing and came to the conclusion that there were facts to support a case of dishonest conduct against both appellants; it, therefor, dismissed the complaint. The appellants have advanced four grounds of appeal. These are expressed in the following terms: 1. The court below erred in law and in fact by failing to consider the claims contained in the complaint and instead considering and pronouncing itself upon the evidence before the disciplinary hearings held by the respondents. 2. The court below erred in law and in fact by relying on the minutes of the disciplinary hearing and the hearing of the appeals committee rather than on the testimony and evidence tendered before the court. 3. The court below erred in law and in fact when it referred to Peter Daka as having given evidence before the court on 11th May, 2015 when J9 Peter Daka was never called as a witness by any party and never appeared during any hearings of the matter before court. 4. The court below erred in law and in fact when it held that the complainants were properly charged and their cases were heard by the Disciplinary Committee and Appeals Committee when the complainants were suspended before they were charged; they were not allowed to call and cross-examine witnesses during the Disciplinary hearing; and the Appeals Committee recalled witnesses and required them to give evidence afresh, all contrary to the provisions of the respondent’s Human Relations Code and Grievance Procedure Hand Booklet. The first two grounds fault the court below for dwelling more on the proceedings of the Disciplinary Committee and the Appeals Committee than on the evidence adduced before the court. On behalf of the appellants, Mrs Mweemba - Chileshe, learned counsel, submitted that, rather than dwell on the evidence that was tendered before it, the court below relied entirely on the evidence of witnesses who were called to the hearings before the Disciplinary Committee and the Appeals Committee; and that the court placed emphasis on the findings in the minutes of the proceedings of those committees. According to counsel, the findings of fact made by the court below based on that analysis suggested that the court misunderstood and misapprehended the issues at hand. She argued that this warranted a reversal of those findings by this court in accordance with the case J 10 of Ndongo v Mulyango and another*1’. She argued that it was wrong for the court below to have relied on the evidence that was adduced before the committees instead of considering the relevant evidence that was adduced before it. She went on to argue that by adopting that approach, the court below constituted itself as a court of appeal from the respondent’s committees. In response, Mrs Mukuka, learned counsel for the respondent, pointed out the following; (i) that the evidence that was before the committees was tendered by the appellants in the court below through their affidavit; (ii) that the minutes of the hearings were part of the record of the court below ;and (iii) that the appellants never objected to that evidence at the hearing. She wondered how the appellants could now turn around and base an appeal against their own testimony. Counsel submitted that the court below relied on that evidence due to its veracity and reliability. Counsel then argued that, in any event, the Industrial Relations Court is mandated to do substantial justice between the parties: and not to strictly follow the rules of evidence; so that, in this case, the evidence that was submitted by the appellants in their affidavit alone was enough to make a finding either for, or against, them. She J11 argued, further, that the said two grounds of appeal, being against facts only, are liable to be dismissed on that score. Finally, counsel quoted a holding in the case of Attorney General v Richard Jackson Phiri*21 which says: “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” and argued that the minutes of the committee hearings contained facts which had not been disputed by the appellants and which supported the dismissal. Counsel, therefore, urged us to dismiss the two grounds of appeal. We must point out that, although the court below did not recount the testimony given at the trial, it said that it had considered that testimony. We believe, therefore, that the court below had that testimony in mind as it delved into the proceedings of the respondent’s disciplinary tribunals. Having said that, we wish to refer to our holding in Attorney General v Richard Jackson Phiri(2) which has been quoted above by counsel for the respondent. We quote also the second holding in that case, which states: J 12 “The court cannot be required to sit as a court of appeal from the decision of the Public Service Commission to review its proceedings or to inquire whether its decision was fair or reasonable. The court ought to have regard only to the question whether the Public Service Commission had a valid disciplinary powers and, if so, whether such powers were validly exercised.” We maintained this position in Zambia Electricity Supply Corporation Limited v Muyambango(3). In Chimanga Changa Limited v Ng’ombe(4), while sticking to this position, we also held as follows: “4. An employer does not have to prove that an offence took place, or satisfy himself beyond reasonable doubt that the employee committed the act in question. His function is to act reasonably in coming to a decision. 5. An employment relationship is anchored on trust. And once such trust is eroded, the very foundation of the relationship weakens.” The effect of our position in all these decisions is that while, in a case challenging dismissal, the court will receive testimony, its focus should be on discerning the evidence or material that was before the employer which prompted him to make that decision. Quite often, not all witnesses that were available during the employer’s disciplinary process will be available before the court for various genuine reasons; and yet it is the evidence of such unavailable witnesses which may have been most influential on the J 13 decision that the employer made. So, by considering only the testimony given at the trial for wrongful dismissal, the trial court will miss the evidence on which the employer based its decision. It is for this reason that the court should look at the minutes of the disciplinary hearing, the statements that were given at the hearing and other documents or other evidence that was before the employer’s tribunal. Hence, in this case the court below was on firm ground when it dwelt on the minutes and the proceedings of the respondent’s disciplinary tribunals. We, accordingly, find no merit in the first and second grounds of appeal. In the third ground, the appellants fault the court below for assuming that Peter Daka had given testimony at the hearing before it. The respondent concedes that the assumption was an error. However, as we have said above, it is immaterial that Peter Daka was not available to testify before the court. What is important is that he provided evidence at the employer’s disciplinary tribunal. It was there that his evidence influenced the respondent’s decision. Therefore, we find no merit in this ground, either. In the fourth ground the appellants contend that the disciplinary procedure was not conducted according to the Human Relations Code and Grievance Procedure Handbook. On this ground, J 14 learned counsel for the appellants dwelt on the perceived breaches by the respondent of a few of the clauses in the Grievance Procedure Handbook. She pointed out that, contrary to clause 6 thereof, the respondent suspended the appellants even before they exculpated themselves. Again, counsel pointed out that, contrary to clause 9.3 of the said Code, the respondent did not avail the appellants with the documents adverse to their case, at least 3 days prior to the hearing as stipulated, but were only given 10 minutes before the hearing on the ground that the documents were, or the matter was, sensitive. Finally, counsel pointed out that, contrary to Causes 10.1.2 and 10.1.3 of the Code, the appellants were not allowed to cross-examine witnesses; or to state their case and call witnesses in their favour. Counsel then went on to refer us to authorities which appear not to support her argument. She cited a book by the learned author W. S. Mwenda, titled “Employment Law in Zambia” and the case of National Breweries Ltd v Phillip Mwenya151 as authority for the proposition that, in considering whether a dismissal is wrongful or not, it is the form to be considered rather than the substance. Then she cited the case of Attorney Genaral v Richard Jackson Phiri(2) as well as some cases that follow the principles set out in that case J 15 namely; Kambatika v Zesco(61 and Samson Katende & Anor v NFC Africa Mining Plc(7) and argued that they supported that proposition. We must state at the outset that we find the proposition that, in wrongful dismissal, it is only the form to be considered and not the substance, rather startling. This is because there are two elements in the holding that we made in Attorney General v Richard Jackson Phiri’21, namely; (i) the correct procedures being followed (this relates to form) and, (ii) the presence of a substratum of facts to support the decision taken (this relates to substance) So, we can only assume that counsel for the appellant misunderstood the authorities that she cited to support that proposition. While we cannot say with certainty that that is the case with regard to the book that she cited, we are certain that she completely misunderstood our decision in National Breweries Limited v Mwenya(5) and the other cases that she referred us to. In fact, in that case we placed more emphasis on the substance than on the form. Hence, we held there that where an employee has committed an offence for which he can be dismissed, no injustice arises for failure to comply with the procedure stipulated in the contract; and, consequently, no claim for wrongful dismissal on that J 16 ground can be founded. Coming back to the alleged breaches, counsel submitted that it was clear that the respondent had not followed the procedural rules as laid down in the code and, therefore, this was a proper case for the court below to have found that the appellants were wrongfully dismissed. The respondent’s response to the arguments in the fourth ground was that; it is trite law that an employment tribunal shall not strictly adhere to rigorous procedures when dismissing an erring employee; all it needs to do is to ensure that such an employee is given a fair hearing and that the rules of natural justice are followed: It need not attain the standard of proving beyond reasonable doubt. We were referred to the unreported case of Simon Mukanzo v Zambia Consolidated Copper Mines(8), where we endorsed a statement by the trial court that as long as it was established that the appellant’s conduct was one which his employer could not tolerate, the employee was at liberty to terminate the contract of employment regardless of the provisions of the disciplinary code. We hasten to say that the issue in that case was whether the appellant, having admitted an apparently minor offence of misuse of company J 17 property should have been dismissed, instead of receiving a recorded warning as was provided in the grievance procedure for a first offender. We concurred with the trial court that the conduct constituting the offence in that particular case was very grave, necessitating the dismissal instead of a written warning. It is against that background that we endorsed that statement. With those arguments counsel urged us to dismiss the fourth ground; and the appeal altogether. The submission by the respondent sits well with the position we took in Chimanga Changa Limited v Ngo’mbe<4), whose relevant holding we have cited above. Indeed, the court will not be too concerned about minor departures from procedure as long as the employee has been given a fair hearing. Having said that, however, we have looked at the proceedings of the two committees. Going through the minutes of the hearings, one can see that the committees did strive to adhere to the procedure as closely as possible. One sees also an attempt at achieving fairness when the appeals committee, owing to the appellants complaint that they were not allowed to cross-examine witnesses at the initial hearing, decided to hear the case de novo; and even asked the appellants to call any witness they wished to call, which they did. It cannot therefore be argued that the J 18 appellants were not given a fair hearing by the respondent. Hence, the fourth ground has no merit as well. Overall, therefore, we see that the respondent not only gave the appellants a fair hearing but there was evidence of misconduct on the part of the appellants which justified the decision which rhe respondent took. Hence, we find no merit in the whole appeal. We dismiss it. The parties will bear their own costs. SUPREME COURT JUDGE ^MfMalila SUPREME COURT JUDGE R. M. C. Kaoma SUPREME COURT JUDGE