Fred Musonda v Barclays Bank Zambia Limited (Appeal No. 128/04) [2006] ZMSC 48 (24 January 2006)

IN THE SUPREME COURT OF ZAMBIA Appeal No. 128/04 HOLDEN AT LUSAKA (Civil Jurisdiction) BETWEEN: FRED MUSONDA Appellant ' AND BARCLAYS BANK ZAMBIA LIMITED Respondent Coram: Sakala, CJ., Silomba and Mushabati JJS 20th October 2005 and 24th January, 2006 For the Appellant: Mr. F. Tembo of Frank Tembo and Partrters For the Respondent: Mr. J. Chashi of Mweemba Chashi and Partners JUDGMENT Sakala, CJ., delivered the Judgment of the Court. Case referred to: Zambia National Provident Fund V Chirwa [1986] ZR 70. This is an appeal against the judgment of the Industrial Relations Court dismissing the appellant's complaint for unlawful and wrongful dismissal from employment. The brief facts of the case are that the appellant was on the 11th January 1995 employed by the respondent as a Communications Assistant. In that position, he dealt with communications and computers and occasionally gave specific advice on the equipment the respondent needed to purchase. On 2°d March 1998, the appellant was suspended from duty on full pay pending the respondent undertaking further inquiries into irregular transactions relating to the purchase of the computer, communications and office equipment. I On 20th April 1998, he received a letter of summary dismissal. In part the letter read: "We now confirm that the Bank has completed its investigations and has satisfied itself that it has been established that you willfully neglected your duties by obtaining an inflated quotation for USD28,000 from Power Equipment resulting in serious financial loss to the . Bank as stipulated in the Grievances and Disciplinary Code page 24 (b). We regret therefore that we must summarily dismiss you from the Bank's service with immediate effect." The appellant's appeal against his dismissal was unsuccessful. The appellant lodged his complaint in the Industrial Relations Court on the ground that the respondent unfairly and wrongfully dismissed him from his employment and that such action was malicious and totally unfair. He sought the remedies of damages for loss of employment, loss of earnings and means of future career prospects. In support of his claim, he gave oral evidence in which he confirmed of appearing before a Disciplinary Committee on three occasions. He complained that during these appearances, the respondent unfairly slapped disciplinary charges against him. He also complained that during the disciplinary hearings, he was denied union representation. He further complained that he received a dismissal letter alleging negligence of duty, when he never dealt with the purchase of equipment. He contended in his evidence that his dismissal was unfair since he was never charged nor was he given chance to defend himself. In their answer to the complaint, the respondents maintained that the appellant's dismissal was lawful; that the appellant had been charged with deriving monetary benefits in the course of duty; there by putting his duty to the Bank in conflict; and that the offence was proved through investigations and warranted dismissal. The respondents maintained in their answer that the appellant obtained an inflated quotation from Power Equipment Limited for an electricity generator and caused the Bank to purchase the generator from a much more expensive source. The respondent contended that the Disciplinary Committee hearings were conducted by an impartial Chairman and that the appellant was advised on several occasions that he was free to call a representative from the union but declined to do so. In support of their answer, the respondent called three witnesses, the Senior Manager for Fraud and Security, who investigated the case against the appellant; the Territorial Reconciliation Manager, who was a member of the Disciplinary Committee that determined the case against the appellant and a Sales Executive who issued a proforma invoice to the appellant in the name of the respondent. The trial Court reviewed the oral and documentary evidence and found that there was no dispute that the appellant obtained a proforma invoice from DW3; but that the generator was not delivered to the respondent but that the appellant arranged for the generator from another supplier sold at US$26000. But the arrangement failed. The Court also found that the appellant denied the transaction when he had infact introduced himself by name to DW3. The Court further found no unfairness in the procedure invoked to dismiss the appellant. The appellant's complaint was dismissed with no order as to costs. Hence, the appeal to this Court. There were no oral submissions made by the parties. But the parties relied on written heads of argument filed with the Court. On behalf of the appellant, Mr. Tembo filed heads of argument based on five grounds namely; that the appellant was not formally charged; that he was denied union representation; ' that the appellant's submissions were not considered as Court found that both parties had defaulted in delivery of their submissions; that the appellant was not identified by DW3 as the person who collected the inflated proforma invoice; and that there was no evidence that the quotation that led to the dismissal of the appellant was inflated. The gist of the arguments on the five grounds is that the appellant having not been formerly charged; there was nothing to respond to and in the circumstances he was denied a chance to put up a meaningful defence; that the appellant complained in writing to be represented by the union but the respondent did not listen; that the appellant filed writteh submissions which the Court did not consider in arriving at its decision; that DW3, specifically summoned to identify the appellant as the person who collected the inflated proforma invoice did not know the person he dealt with who collected the inflated quotation; and that the evidence led at trial lamentably failed to prove that the quotation was inflated. The summary of the respondent's heads of argument is that the case against the appellant was investigated; he was dismissed on 20th April, 1998 upon the appellant having been invited to the Disciplinary Committee hearing on three occasions and subsequently appealed to the Appeals Committee. It was submitted that the Grievances and Disciplinary Code was followed. On delivering judgment without taking into account the submissions, it was submitted that this was not a serious error. ( It was also pointed out, in the respondent's written heads of argument that whether Power Equipment or Goldtronics retrieved the equipment from Barclays Bank did not make any difference to the judgment. On identification, it was submitted that the evidence of RWl and RW8 adequately committed the appellant to the charge. We have examined the evidence on record, the judgment of the trial Court as well as the written heads of argument by both learned Counsel. As we see it, the arguments and submissions and the whole appeal center on two issues: the findings of fact by the Court and the procedure invoked by the respondent in dismissing the appellant. On the issue of findings of fact, the Court found that it was not in dispute that the appellant obtained the invoice in issue from RW3; that although the appellant obtained the invoice, the generator was not delivered to the respondent; and that the appellant had engaged in an arrangement to obtain the generator from Goldtronics Limited sold at US$26000, but the arrangement flopped. The 'court found as a fact that the appellant was untfu.stworthy which fact justified his dismissal. These were all findings of fact. J In terms of the Industrial and Labour Relations Act, no appeal lies against findings of fact only by the Industrial Relations Court (See Section 97 of Cap 269). The grounds of appeal based on findings of fact only cannot succeed. They are accordingly dismissed. On procedure invoked in dismissing the appellant, the Court found no serious unfairness. In the case of Zambia National Provident Fund V Chirwa,(1) this Court held: "Where it is not in dispute that an employee has committed an offence for which the appropriate punishment is dismissal and he is also dismissed, no injusti.ce arl.ses from a failure to comply with the laid down procedure in the contract and the employee has no claim on the ground for wrongful dismissal or a declaration that the dismissal is nullity." There was no dispute here that the appellant collected an inflated invoice and that the generator was not delivered. The Court found no unfairness in the procedure adopted. We, too, find no unfairness. The grounds of appeal based on failure to comply with the laid down procedure cannot also succeed. The whole appeal 1s therefore dismissed. We make no order as to costs . . .... ..... • ~ ..... . ..... .. .... . E. L. Sakala CHIEF JUSTICE ..... .. ~ ...•............ S. S. Silomba SUPREME COURT JUDGE C. S. Mushabati SUPREME COURT JUDGE