First Quantum Mining and Operations Ltd v Goodwell Sikazwe (APPEAL NO.313/2021) [2023] ZMCA 303 (13 October 2023)

IN THE COURT OF APPEAL OF ZAMBIA HOLDEN AT KABWE (Civil Jurisdiction) ~\>\l~l\C OF lAMs ~1 OF APP£,4,l l,1 APPEAL NO.313/2021 BETWEEN: -::i "' FIRST QUANTUM MINING AND ~o . AND GOODWELL SIKAZWE APPELLANT RESPONDENT CORAM: SIAVWAPA JP, MAKUNGU AND PATEL, JJA On 11 th and 13 th October, 2023 FOR THE APPELLANT: MR. H. PASI OF MESSRS. MANDO AND PASI ADVOCATES FOR THE RESPONDENT: MR. K. CHALI OF MESSRS K. CHITALA ADVOCATES. JUDGMENT SIAVWAPA JP delivered the Judgment of the Court Cases referred to: 1. Sam Amos Mumba v Zambia Fisheries and Fish Marketing Corporation Limited 1980 ZR 135 2. Chansa Ng'onga v Alfred H. Knight (Z) Limited SCZ Selected Judgment No 26 of 2019 3. Amiran Limited v Robert Bones SCZ Appeal No 42 of 2010 4. Zambia National Commercial Bank Plc. v Joseph Kangwa, Appeal No. 54 of 2008 5. Kansans hi Mining v Mathews Mwelwa CAZ Appeal No 103 of 6. Liebherr Zambia Limited v Cleopatra Ng'andu Mandandi CAZ Appeal No 182 of 2021 Legislation referred to: 1. The Employment Code Act No 3 of 2019 2. The Industrial and Labour Relations Act, Chapter 269 of the Laws of Zambia 1.0 INTRODUCTION 1.1 On 15th October, 2021, the Honorable Mr. Justice D. C. Mumba, of the Industrial Relations Division of the High Court, delivered a Judgment. 1.2 By the said Judgment, the learned Judge found that the Appellant had unlawfully terminated the Respondent's employment. 2 .0 BACKGROUND 2.1 On 17th September 2010, the Appellant employed the Respondent as a Spotter on a perma nent basis and elevated him to the position of Rigid Dump-Truck Operator on 25th March 2013 . 2 .2 In 2016, the Respondent started experiencing poor vision for which h e received treatment and p eriodic check-ups from appropriate health personnel. J2 2.3 His condition kept on deteriorating and on 17th December, 2019, the Appellant granted him sick leave. Thereafter, the Respondent attended Kansanshi Occupational Wellness Centre and on 27th December, 2019, a specialist prescribed medication and lenses for him. 2.4 By letter dated 23 rd February, 2020, a medical doctor, declared the Respondent permanently unfit to work as a Rigid-Dump Truck operator and recommended that he be re-deployed. 2.5 On 25th February, 2020, the Appellant terminated the Respondent's contract of employment due to incapacity . 2 .6 Aggrieved by the development, the Respondent filed a complaint in the Industrial and Labour Relations Division of the High Court on 14th May, 2020 seeking the following reliefs: 1. Damages for wrongful and or unlawful termination of the Employment Contract 2. Punitive and Exemplary Damages 3. Damages for shock and embarrassment 4. Damages for loss of employment opportunities 5. Damages for inconvenience caused 6. Payment of all salary arrears from the date of termination 7. Legal Costs J3 3.0 IN THE COURT BELOW 3.1 The gist of the Respondent's case in the Court below was that the Appellant should have re-deployed him to alternative duties as recommended by the doctor instead of terminating his employment on medical grounds. 3.2 The Appellant, on the other hand, contended that there was no alternative position or vacancy that th e Respondent could be re-deployed to, as a result of which it terminated his employment and paid him a severance package in full. 4.0 DECISION OF THE COURT BELOW 4.1 After considering the evidence and submissions from both parties, the learned trial Judge found that the issue for determination was whether the Appellant had terminated the Respondent's contract of employment wrongfully and or unfairly. 4.2 After considering Section 38(5) of the Employment Code Act and Clause 6(c) of the Respondent's contract of employment, the learned Judge formed the view that the Appellant should h ave placed the Respondent on six months sick leave before terminating his employment on medical grounds. 4 . 3 The learn ed judge further opined that in the absence of a recommendation from the doctor to discharge the Respondent J4 on medical grounds, the Appellant wrongfully and unfairly terminated the Respondent from employment. 4.4 The learned trial Judge awarded the Respondent damages equivalent to six months' basic salary, a llowances and interest on the basis that he had suffered inconvenience due to the abrupt termination of his employment. 5.0 THE APPEAL 5.1 The Memorandum of Appeal contains the following grounds of appeal: 1. The Court below erred in law when it held that the termination of the Respondent's employment was wrongful and unfair on the ground that the Appellant should have placed the Respondent on six months medical leave despite finding that the medical practitioners had certified the Respondent permanently unfit to perform his normal duties and that there was no obligation on the Appellant to redeploy the Respondent as recommended by the medical practitioners. 2 . The Court below erred in law when it awarded the Respondent an equivalent of 6 months basic salary plus allowances as damages for loss of employment when the Respondent was already compensated by JS the Appellant for loss of employment when he was paid three months basic pay for each year served 3. The Court below erred in law when it ordered the Appellant to pay th e Respondent's costs when there was no finding of undue delay or improper conduct in the prosecution of the matter on the part of the Appellant. 6.0 ARGUMENTS IN SUPPORT 6.1 The gist of the Appellant's argument in ground one is that there was no evidence supporting the finding of wrongful and unfair dismissal. Further that the learned judge misinterpreted the Respondent's contract of employment and the applicable law. 6.2 To that extent, the Appellant has argued that the six months sick leave provided for under section 38 of the Employment Code Act runs from the date of illness and not from the date of t h e certificate of incapacity. Further that the entitlement to sick leave terminates upon certification of incapacity. 6.3 In relation to re-deployment, Counsel argued that the Appellant was not bound to re-deploy the Respondent and that the learned trial Judge ignored the evidence that the Appellant did make efforts to find the Respondent alternative employment. J6 6.4 Lastly, the Appellant called in aid the case of Sam Amos Mumba v Zambia Fisheries and Fish Marketing Corporation Limited 1 and Section 52 of the Employment Code Act to argue that it was also entitled to terminate the Respondent's employment on the grounds of frustration as he could not continue as a Rigid-Dump Truck operator due to his sickness. 6.5 In ground two, Counsel argues that the Court below should not have awarded damages because the circumstances of this case did not involve a summary dismissal and the Respondent was compensated for loss of employment in form of a severance package as provided by his conditions of employment. 6.6 The Appellant also argued that damages for wrongful dismissal are limited to the period of notice that should have been given, but that there was no requirement for notice under both the contract and the law in this case. 6.7 The Appellant contended that the Respondent did not prove the damage or loss he suffered to be entitled to damages. In addition, the Appellant contends that the learned trial Judge did not give reasons for finding that the Respondent's loss of employment was abrupt and that he suffered a great deal of 1nconven1ence. J7 6.8 The Appellant further argued that since the Respondent was aware of his incapacity to fulfil his job description, there was no basis for holding that the loss of employment came as a shock to him. 6.9 According to the Appellant, for the award of general damages for wrongful dismissal, the claimant must prove what he would have been entitled to if the employer had followed the dismissal procedure and the law. The case of Chansa Ng'onga v Alfred H. Knight (Z) Limited2 is the reference point. 6.10 In ground three, the Appellant relied on the cases of Amiran Limited v Robert Bones3 , Zambia National Commercial Bank Plc. v Joseph Kangwa4 and Kansanshi Mining v Mathews Mwelwa5 to the effect that rule 44 of the Industrial Relations Court Rules, provides that costs can only be awarded against a party if such party is guilty of unreasonable delay, or of taking improper, vexatious or unnecessary steps in any proceedings, or of other unreasonable conduct. 7.0 ARGUMENTS IN OPPOSITION 7 .1 In ground one, the Respondent has argued that absenteeism from work without leave does not attract summary dismissal but that a dismissal on that basis is amounts to wrongful dismissal. J8 7 .2 The Respondent also cited section 38 (5) of the Employment Code Act which gives discretion to an employer to discharge an employee who does not recover after six months on medical grounds. This was in support of the learned Judge's finding that the Appellant wrongfully terminated the Respondent for not placing him on six months sick leave before terminating his employment. 7.3 In responding to the argument that the Appellant terminated him on the basis of the Doctor's advice that the Respondent was permanently unfit to discharge his duties, the Respondent has argued that the Doctor recommended re-deployment and there was no evidence that the Appellant tried to find alternative employment given the swiftness with which it terminated the Respondent upon receiving the Doctor's recommendation for re deployment. 7.4 In ground two the Respondent contends that the Appellant deserves to be punished for terminating the Respondent's employment abruptly and contrary to the Doctor's recommendation for re-deployment. In support, the Respondent cited a number of cases in which both the Supreme Court and the Court of Appeal justified the award of damages beyond the notice period such as Chilanga Cement v Kasote Singogo, Barclays bank v Western Lyuni and Josphat Lupemba v First Quantum Mining and Operations Limited. J9 7.5 In arguing ground three, the Respondent cited the case of Scherer v Country Investments Limited which held that as a general rule, costs follow the event. The Supreme Court of Zambia upheld that principle in a number of cases including Matale James Kabwe v Mulungushi Limited to the effect that the successful litigant is generally entitled to costs, 8.0 OUR ANALYSIS AND DECISION 8.1 In our considered view, the appeal hinges on the interpretation of Section 38 of the Employment Code Act of 2019 and Clause 6 of the Respondent's Contract of employment. 8. 2 For ease of reference, the section is reproduced hereunder; (1} An employee who is unable to perform that employee's normal duties due to illness or injury not occasioned by the employee's default shall notify the employer of the illness or injury and proceed on sick leave on production of a medical certificate from a health practitioner, (2) Where an employee is incapacitated due to illness or injury not occasioned by the employee's default, the employee is entitled to sick leave under sub-section (1) and- (b) an employee on a long-term contract shall be paid full pay during the first three months of the sick leave and thereafter, half pay fo r the next three months of the sick leave. (3) Despite subsection (2), this section shall not apply where the incapacity arises from an occupational related accident or disease as provided for under the Workers Compensation Act, 2019. JlO 8.3 Under the cited provisions of the Act, an employee in the described circumstances is entitled to proceed on sick leave for a period not exceeding six months. However, subsection (3) provides an exception to the application of section 38 where the incapacity is occupation related. 8.4 The main issue in dispute is that the Appellant was in breach of section 38 of the Act and clause 6 (c) of the contract of employment for not placing the Respondent on six moths' sick leave before terminating his contract of employment. 8.5 Clause 6(c) of the Respondent's conditions of service titled 'sick leave' is couched in the same terms as Section 38 as it grants sick leave for up to six months. It goes on to state: "Should you then still not be able to report for duty, your contract of employment will be reviewed and may be terminated on medical grounds." 8.6 The facts on record are that the Respondent was granted sick leave on 17th December 2019. After 2 mont hs and 8 days, his employment was terminated by a letter dated 25th February 2020 for incapacity . 8.7 Clearly, the Respondent was not terminated on medical grounds but for incapacity to perform his usual duties. Jll 8.8 The letter of 23 rd February, 2020, did not recommend the placing of the Respondent on sick leave but re-deployment permanently after the Doctor declared him permanently unfit to work as an operator. 8. 9 The Appellant, having no suitable position to which it could re deploy the Respondent, decided to terminate his contract. To the extent that sick leave under section 38 of the Act is upon a Doctor's certificate, the Appellant was not in breach for not placing the Respondent on sick leave before terminating his employment. 8.10 As regards clause (6) of the contract of employment, the same is the case as it is couched after the manner of section 38 of the Act in the first part creating no obligation upon the Appellant to grant sick leave . 8.11 The issue then is whether the Appellant was entitled to terminate the Respondent's contract in the manner it did. 8.12 Clause (1) of the Respondent's contract of employment provides as follows in relation to termination: "Once you have been confirmed in this pos ition, the appointment can only be terminated by either party by giving thirty da ys' notice or a month's p ay in lieu of notice." J12 8 .13 The failure to give notice as provided in Clause 1 of the Con tract and Section 53(1) of the Employment Code Act rendered the termination of the Respondent's contract wrongful and unlawful. 8.14 However, under subsection (4) of the Act, failure to give notice obligates the employer to compensate the employee a sum of money the employee would have been entitled to if he had worked during the notice period. In this case, it is a month's pay in lieu of notice , 8 .15 Ground one therefore succeeds not for the reason given by the Court below but for failure to give a month's notice as required by clause 1 of the contract of employment. 8.16 In ground two it is argued that there was no notice p eriod required in the present case. This is because th e Responden t n o longer had capacity to perform his duties a nd that h e is not entitled to damages because he was paid his full sever a n ce package. 8.17 In light of what we have said on ground one, the first part of ground two is rendered otiose . However , the question wh eth er the fact that the Respondent was paid a severance package extinguished his entitlement to damages is open. J13 8. 18 The starting point is that an award of damages for failure to give notice of termination of employment is different from the employee's entitlement for wrongful/ unfair or unlawful dismissal. 8 .19 A plethora of cases guide on the normal measure of damages following a wrongful termination. Recently in the case of Liebherr Zambia Limited v Cleopatra Nq 'andu Mandandi6 , we restated that the normal measure of damages is the applicable contractual length of notice or reasonable notice where the contract is silent. 8.20 It is only in deserving cases where it is proved that there are exceptional circumstances that the Court will depart from the ordinary measure of damages. 8.21 The learned trial Judge took the view that the Respondent deserved an award of damages above the normal measure because the termination was abrupt resulting in a great deal of 1nconven1ence. 8.22 This case is unlike other cases where an employee is dismissed and the Court finds the dismissal unlawful or unfair. In such cases, the Court will award damages over and above the contractual notice period if the circumstances of the dismissal so justify. J14 8.23 In our view, the position of the law earlier referred to is clear. The Respondent is only entitled to the equivalent of what he would have been paid if he had worked during the notice period of thirty days. He was paid a reasonable severance package because he was not dismissed 8.24 We therefore, set aside the award of damages equivalent to six months of last basic salary and instead award one month's salary together with all allowances. Ground two therefore, succeeds in so far as it impugns the award of six month's salaries as damages. 8.25 In ground three, the question raised is whether the learned trial Judge should have awarded the Respondent costs. 8.26 Rule 44(1) of the Industrial Relations Court Rules provides as follows: "Where it appears to the Court that any person has been guilty of unreasonable delay, or of taking improper, vexatious, or unnecessary steps in any proceedings or of other unreasonable conduct, the Court may make an order for costs or expenses against him." 8.27 In the Amiran case (supra), the Supreme Court of Zambia further guided that the principle in this rule should be adopted in appeals that come from the Industrial Relations Division of the High Court. JlS • 8.28 In the present case the learned trial Judge awarded costs to the Respondent without giving reasons for his decision. This decision was clearly contrary to the Rules and the decision of the Supreme Court cited earlier. 8.29 We set aside the order as to costs in the absence of a finding of wrongdoing on the part of the Appellant. 8 .30 This appeal has substantially succeeded in all the grounds advanced. Each party will bear their own costs here and below. . . . . .. . .. . .. .... J .................. . M. J. SIAVWAPA JUDGE PRESIDENT ........ .. ~ ........ . CR. i1AKUNGlf COURT OF APPEAL JUDGE ......... b..":-:.-:.t.cf.!. ............ . A. N. PATEL, SC COURT OF APPEAL JUDGE J16 Of ZM Of APPE l- Rf. G ) -,~( \ _;.,. /