Gabriel Mangamu Musonda v ZESCO Ltd (2010/HP/1268) [2023] ZMHC 79 (23 May 2023)

J1 IN THE HIGH COURT FOR ZAMBIA AT THE PRINCIPAL REGISTRY HOLDEN AT LUSAKA (Civil Jurisdiction) BETWEEN: GAB~!EL MANGAMU MUSONDA AND ZESCO LIMITED 2010/HP/1268 DEFENDANT Before Honourru,le Mr. Justice M. L. Zulu at Lusaka on the ...... For the Plaintiff' For the Defendant: day of ............ 2023 Mr. M. Chiteba of lvlessrs lvluleyia Mundashi Legal Practitioners !Ylr. A. Sike, Chief Legal Officer, In-house Counsel ----··-··-------- JUDGMENT ------------------------------ Cat.es refe.,!'red to: I. Care h1ter11ational Zflmhia limited v f',,fisl1eck Tentbo Sele£•tetf Jutlxment No. 56 of 2. Koukola Copper Mine., Pie v Hendri.,; Mule11gu Cltiles/1e SCZ Appe11! No. 94/2015 3. Alfomey General v Paul Chilo.,·ha SCZ Appeal No. 22012016 4. Mukansemu Shambweka Nyirend11 (1lfrs) {suing as t//e Admi11istratix oftl,e estate of tl1e late Elijah Nyire11da) v Zamblr, Forestry antf Fore.ti htd11.,tries Corpora1io11 Limited SCZ Appeal No. 1271201J 5. :t(lmbia Telecommu11icat/o11s Company Limited v Simon Mude.nda SCZ Appeal No. 6. Puttick v AttfJrney Ge11ei-al 11ml Another /1981/ QB 767 7. Bwa!ya v TIie Attomey (ieneml SCZ Appe11/ No. 62 of 2012 8. Zambia Chi11a M11/u11guslli Textile (joi11t ve11ture) limited v Gabriel Mwami (2004) Z. R. 2-i4(S. C). 9. Nitro1:e11 Chemicals of Zambia limited 1• Hoy,/ Clwmha Murnmbo «nd Others SC7. Appe11/ No. 7511014 I I). CtJn<:rcte Pipes af1({ Prodt1c1s Limited v Kabimba mu! Another Appiml No. fJ 1412015 11. Time Trucking Limited v Kelvi11 Phiri Appeal /11{1. 25 ,![2016 12. Kitwe City Cmmcil v William Ng'uni (2005) Z. R. 57 JJ. Bemar,l Kutfllika v Daiue.,s K,1/nnga Appeal No. 73 of2013 J2 /4. Michuel Kallula v Fi11a11ce Ba11k Zambia Limited Appeal No. 96/2012 /5. Llcyd Nyirenda v Grace Mi11istrie.t Mi.t.t/011 lntemational Appeal No. 30120111 /6. Chiiu11ga Cement Pie v Kasote Si11gogo (2009) ZR 122 (S. C) 17. Carclil1e Tomaidali Duka v Zambia N"1io11ul Commercial Bank (2012) Z. R. 8 HC 18. Victor Kampamb,1 M11le11ga v Zambia Citino Mulu11gushi Textiles Joint Ve111ure Limited and Another Appeal No. 21912016 Legislatio11 referred to: 1. TIie High Court Rule.<, Ch11pter 27 oft/le Laws of Zambia 2. TIie Employment Act, Cliapter 268 of tile Laws ofZ11mhi11 (repealed) Other works referred to: J. Halslmry's Laws of E11gland, 41l1 editio11 Reissue,, vol. J 6 2. Black's Law Dictionary 4th Edition, Reissue, 1968 1.0 INTRODUCTION 1. 1. This matter stems fro1n a dispute between an employee and his employer commenced through a Writ of Summons dated 23m November, 2010. 1.2. The Plaintiff was employed by the Defendant company in 1985 as an Assistant Engineer rising with time to the position of Construction Engineer. The employment relationship was governed by the Defendant's Conditions of Service for Non Represented Permanent and Pensionable Employees. The Defendant placed the Plaintiff on indefinite suspension pending investigations after he was implicated in a case involving misappropriation of the Defendant's property. The Plaintiff was only charged after nearly 4 years had lapsed J3 contrary to the Defendant's disciplinary code with the offence of dishonest conduct and even after he began appearing before the disciplinary hearings, the matter was continuously adjourned without any conclusion. The Plaintiff was also charged with the offence of theft by servant for which offence he had appeared before the courts but was subsequently discharged. 1.3. The Plaintiff has therefore commenced this action alleging that he was never formally separated from the Defendant's employ and also never attained his retirement age. He alleges that he has neither received any emoluments and has been unable to enter into any gainful employment due to the aforesaid. He now claims the following reliefs: (i) A declaration that he was constructively and unfairly dismissed by the Defendant; (ii) Damages for constructive dismissal; (iii} Payment of emoluments to which the Plaintiff is entitled to date; (iv) Interest (v} Separation from the Defendant (vi) Cost.'i 1.4. The Defendant filed its Memorandum of Appearance and Defence to the Plaintiffs Writ of Summons and averred that )4 the Plaintiff was never on permanent and pensionable conditions of service. That after the Plaintiff was implicated in a case of misappropriation of the Defendant's property, he was charged with the offence of dishonest conduct. It was alleged that the Plaintiff stopped pursuing the administrative procedure hence he cannot claim otherwise. 1.5. The Defendant averred that the outcome of the criminal investigations had no bearing on the internal administrative procedure. It disputed the claims that the Plaintiff was unable to enter into any gainful employment and added that the Plaintiff is not entitled to any of the emoluments he claims to be entitled to for the period in question when he never rendered any services to the Defendant. 1.6. It was also alleged that the Plaintiff's claim was statute barred hence he was not entitled to any of the claims against the Defendant. 2.0. CASE FOR THE PLAINTIFF 2.1. PWl was Gabriel Musonda Mangainu, the Plaintiff in this matter. He testified that he was employed in June, 1985 as an Assistant Engineer. That this was followed by a prornotion to the position of Construction Engineer in the yef.tl" 1991. He JS served under the conditions of service for unionized workers on full time pensionable employment and was later promoted to the position of construction engineer in 1992 which position he served under until 1994 when he was requested to report to Emmasdale Police station where he was held pending investigations of a case of theft of cables. The Defendant was the complainant. 2.2. PW 1 said that after his release and subsequent resumption of his duties, he was served with a letter of indefinite suspension. He began to follow up on the matter with the Hun1an Resource offices until January, 1998 when he was invited to have his matter reviewed. That upon answering the call to attend the meeting on 8 th January, 1998, he waited for hours only to be informed that the meeting had been postponed. This happened on several occasions until 13<h August, 1998 when he was handed a charge letter and asked to exculpate himself by the next day. He responded to the letter the very day and was informed of yet another meeting on 18th August, but the same was equally postponed. 2.3. PWl stated that after the long wait, he engaged a law firm, Mabutwe & Associates in 2004 to see how the matter could )6 be resolved. That various correspondence was written to the Defendant's managen1ent but to no avail. 2,4. During cross examination, PWl informed the Court that he was not dismissed but suspended. That he served under the ZIMCO conditions of service but expressed ignorance as to whether the conditions provided for a disciplinary hearing to be conducted once an employee was charged. 2,5. PW 1 stated that the letters requesting his attendance where issued by the Defendant but there was no provision for him to acknowledge his attendance. He refused having abandoned the process alluding to the fact that he exculpated himself. 3.0. CASE FOR THE DEFENDANT 3.1. The Defendant's first and only witness was Timothy Musonda Bowa, the Human Resources Manager under the Defendant company. He informed the Coutt that the Plaintiff was implicated in a case involving misappropriation of company property for which he was suspended indefinitely and charged. That after numerous invitations to attend the disciplinary hearing, the Plaintiff failed to avail himself. That the Defendant was later sued by the Plaintiff which resulted in the premature closure of the administrative process. 3.2. DWI said that the Plaintiff is not entitled to any of the reliefs that he seeks because the case was never resolved administratively because of this law suit. 3.3. In cross examination, DWl did not dispute not having evidence to show that the Plaintiff never attended the meeting but only the invitations from themselves. 4.0. SUBMISSIONS BY THE PLAINTIFF 4.1. Counsel for the Plaintiff began by analyzing instances that amount to unfair dismissal with reliance being placed on the decisions in the cases of Care International Zambia Limited v Misheck Tembo 1• Konkola Copper Mines Plc v Hendrix Mulenga Chileshe2 • Attorney General v Paul Chilosha3. Mukansemu Shambweka Nyirenda (Mrs) (suing as the Administratix of the estate of the late Elijah Nyirenda) v Zambia Forestry and Forest Industries Corporation Limited4 and Zambia Telecommunications Company Lim~te4 v Simon Mudenda5. These authorities where used to support the Plaintiff's position that his claim for unfair dismissal is tenable under the circumstances as his )8 employment came to an end without any disciplinary hearing. That the evidence of DW 1 showed that the Defendant failed to respond to the request by the Plaintiff's advocate's requesting for information as regards the said hearings. This state of affairs was created by the Defendant who prevented the Plaintiff from having his case determined administratively. 4.2. The Plaintiff faulted the Defendant's attempt to try and rely on its own default to claim that he was not entitled to the reliefs sought. The case of Puttick v Attorney General and Another6 was thus cited to argue that the Defendant should not be allowed to benefit from its own wrong doing to the Plaintiff's detriment. 4.3. Counsel for the Plaintiff further submitted that an employee can also be unfairly dismissed on unsubstantiated or unreasonable grounds. Additionally, that the failure by the Defendant to institute disciplinary proceedings to give the Plaintiff an opportunity to be heard after his suspension was unfair. That as an employee, the Plaintiff should have been given an opportunity to be heard. Counsel called to his aid various cases on the espoused rule~ of natural justice such J9 as the cases of Bwalya v The Attorney General7 and Zambia China Mulungushi Textile (joint venture) Limited v Gabriel Mwami8 • 4.4. It was argued that the suspension of the Plaintiff that consequently led to the termination of his employment was based on allegations that were yet to be proven and thus remained unsubstantiated. That this unsubstantiated ground formed the basis of the dismissal which rendered the same to be unfair. That the Plaintiff is therefore entitled to the reliefs sought. 4.5. As for the argument touching on constructive dismissal, it was submitted that this instance occurs where an employee terminates the contract of employi11ent by resigning in protest against the management's conduct. That constructive dismissal is established where the employer's conduct is so serious such that it amounts to a repudiation of the contract and the employee must clearly indicate that he is resigning or being forced to leave employment due to such conduct. The case of Nitrogen Chemicals of Zambia Limited v Boyd Chomba Mutumbo and Others9 was cited as authority on the requirements to establish constructive dismissal. The JlO said requirements were itemized as follows; firstly, the employee must resign; secondly, the resignation must be in response to a fundamental breach of contract; and lastly, that the employee must act promptly and in response to the breach, so that he or she is not taken to have implicitly agreed to continue with the contract. 4.6. In furtherance of this, Counsel argued that constructive dismissal also exists where the employer is guilty of conduct which is a significant breach that goes to the root of the employment contract or which shows that the employer no longer intends to be bound by one or more of the essential terms of the contract. That an employee would under such circumstances be entitled to resign and treat himself/herself as having been discharged. This conduct by the employer must undermine the employment relationship of mutual trust and respect. 4.7. It was argued that the Defendant's action falls squarely within this ambit of dismissal alluding to the manner in which the Plaintiff was treated. That the failure to attend to the Plaintiffs case fully, was a breach of the duty of good faith, trust and respect in that en1ployment relationship. The Jll lack of good faith was attributed to the length of time that the matter was held in abeyance. 4.8. Counsel went on to highlight the circumstances that courts will look at when ascertaining damages in cases of unlawful, unfair or wrongful dismissal cases to which various authorities in support were also cited. 4.9. Counsel also endeavored to show that the Plaintiff had attempted to mitigate his loss by trying to seek alternative employment and constantly following up on the status of his case with the Defendant. This was done with the aid of numerous authorities from our jurisdiction. 4.10. This Court was thus urged to find in favour of the Plaintiff and grant the reliefs sought and award him costs of the suit. 5.0. SUBMISSIONS BY THE DEFENDANT 5.1. The gist of the Defendant's submissions was that the Plaintiff acted prematurely in commencing this action before he could exhaust the internal disciplinary channels. The case of Concrete Pipes and Products Limited v Kabimba and Another 10 was cited in aid of that argument. My attention was thus drawn to the evidence of DWl to argue that he had established that the Plaintiff had neglected the disciplinary Jl2 hearings and that there was no evidence that these were adjourned at the Defendant's instance. 5.2. With regard the claim for constructive dismissal, the Defendant pointed out that the Plaintiff was merely placed on indefinite suspension and at no time was he discharged from employment. That neither is there any evidence showing that he had resigned even when he had several years to do so. This was after Counsel for the Defendant also gave elaborate circumstances that the courts would deem an employee to have been constructively or unfairly dismissed. 5.3. Counsel further submitted that the Plaintiff did not plead breach of contract nor did he adduce any evidence to that effect to support the claims that he was constructively dis1nissed or as otherwise pleaded. 5.4. In response to the claim for emoluments, Counsel for the Defendant referred this Court to the position given by the Court of Appeal in the case of Time Trucking Limited v Kelvin Phiri11 and that of the Supreme Court in Kitwe City Council v William Ng'uni12 to argue that the Plaintiff cannot claim to be awarded for work he had not actually done as it would amount to an unjust enrichrr1ent. JB 5.5. The Defendant concluded its submissions by urging this Court to dismiss the Plaintiffs action on grounds that he has lamentably failed to prove his case to the requisite standard. 6.0. REPLY 6.1. The Plaintiff filed an application through Summons for an Order for Leave to file Submissions in Reply pursuant to Order 3 Rule 2 of the High Court Rules, Chapter 27 of the Laws of Zambia. The Plaintiff filed an accompanying Affidavit exhibiting the intended reply. When the matter came up for hearing on 3rd March, 2021, this Court had indicated that it would render a Ruling on the application in the Judgment which I now do before I delve into the main decision. For the sake of brevity, I proceed to render my Ruling without considering the skeleton arguments or affidavit evidence produced before this Court on the Application. 6.2. A perus~l of the Plaintiffs application demonstrates that reliance was placed on Order 3 Rule 2 of the High Court Rules which was held by the Supreme Court in the case of Ber.nard Kutalika v Dainess Kalunga 13 that: "This provision in our view presupposes an a:ppltcatton in the first place. Only after a J14 court has been moved would it have the power to do what is envisioned in Order HI of the High Court Rules.,, 6.3. The said Order 3 Rule 2 of the High Court Rules provides that: "Subject to any particular rules, the Court or a Judge may, in all causes and matters, make any interlocutory order which it or he considers necessary for doing justice, whether such order has been expressly asked by the person entitled to the benefit of the order or not." 6.4. This provision begins with the words subject to any particular rules, which means that there must be another provision cited that grants the Court the power to perform the request that a litigant is seeking. The Plaintiff's application is short on that requirement. In so far as the said application makes no reference . to any other provision which empowers this Court to grant the relief sought, I find it irregular and I accordingly dismiss it. JlS 7.0. DECISION AND ANALYSIS 7 .1. I have considered the evidence and very lengthy submissions by Counsel on both sides. The main issue for determination in my considered view, is whether the Plaintiff was constructively or unfairly dismissed. The law on constructive dismissal is well settled in our jurisdiction. In the case of Michael Kahula v Finance Bank Zambia Limited 14, it was held that: "If the employer ls guilty of conduct which is a significant breach going to the root of the contract of employment, or which shows that the employer no longer intends to be bound by one or more of the essential terms of the contract, then the employee is entitled to treat himself as discharged from any further performance. If he does so, then he terminates the contract by reason of the employer's conduct. He is constructively dismissed. The employee is entitled in those circumstances to leave at the instant without giving any notice at all or, alternatively, he may give notice and say he ts leavi.ng at the end of the notice. But the conduct must in either case be sufficiently serious to entitle him to leave at once." Jl6 7.2. The Court of Appeal also added its voice in the case of Lloyd Nyirenda v Grace Ministries Mission lnternational15 where it stated that: "Since the employee is claiming that the employer has broken the contract, he must resign as a result of that breach., if he continues to report for work, he may be deemed to have waived the breach, and can hardly bring a claim subsequently based on the employer's repudiation, for the law does not allow him to have hfs cake and eat ft." 7.3. Additionally, the learned authors of Halsbury's Laws of England, 4th edition at paragraph 321 state that: ''. An employee who terminates the contract of employment, with or without notice may still claim to have been dismissed if the circumstances are such that he is entitled to terminate it without notice by reason of the employer's conduct. The employee must leave in response to the breach of contract and indicate that he is treating the contract as repudiated. Delay in so doing may amount to waiver of breach and afflrmatton of the contract, though this will depend on the facts of the case, and a realistic approach must be Jl7 taken, so that it may be reasonable for the etnployee to work for a period under protest, especially if trying to resolve the matter without leaving." 7.4. It is trite law that constructive dismissal occurs where an employee terminates their employment or gives notice to terminate in response to their employer's treatment or conduct towards them. This treatment in question must have been bad and the employee must have resigned or given notice, for constructive dismissal to apply. The notion behind this, as noted by the Supreme Court in the case of Chilanga Cement Plc v Kasote Singogo 16 , is anchored on the concept that an employer must treat his employee fairly and should not act in a manner that will force an employee to leave his job. 7.5. In the current case, the Plaintiff was suspended indefinitely in 1994 pending investigations by the Defendant following the charges that were leveled against him. He remained on suspension without any feedback from the Defendant until 1998 when the Defendant wrote to him in January of that same year requesting his presence. In response to this letter, the Plaintiff proceeded to the Defendant's offices only to be J18 informed that the meeting had been postponed. This happened not once but several times until 131h August, 1998 when he was given a letter asking him to exculpate himself by the following day. He responded to the letter on the very day and was requested to attend yet another meeting scheduled for 18th August, 1998 which was equally postponed. After several similar postponements, the Plaintiff elected to engage Mabutwe and Associates, to represent his interests and through a letter dated 15th March, 2004, in the Plaintiff's Bundle of Documents, the Defendant was engaged through the Director of Human Resources, to which no response was given. By 29th May, 2009, the Defendant had still not responded to the correspondence and the letter from the Plaintiff's advocates gave notice of the intention to seek legal redress through the Courts of law hence this matter. Counsel for the Defendant argued that the Plaintiff failed to produce evidence to show that the meetings were postponed at its instance. The fact that the Defendant had been engaged by the Plaintiff's advocates demonstrates on a balance of probabilities that the delay in resolving the matter was at the instance of the Defendant whose failure to respond to the Jl9 Plaintiff's call for a resolution showed that it had no intention to do so quickly. The question is whether the Plaintiff can be deemed to have been constructively dismissed under the circumstances. 7.6. Counsel has argued that the Plaintiff was constructively dismissed alluding to the Defendant's failure to administratively resolve the Plaintiffs case within good time. As earlier indicated, constructive dismissal contemplates a resignation from employment as a response by an employee to the conduct complained of on the employer's part. The same must be in breach of the employment contract. The Plaintiff waited until 2010 from 1994 to act upon the alleged 'bad' conduct. on the part of the Defendant by commencing this action. However, suing the Defendant is not the same as resignation contemplated under constructive dismissal. Black's Law Dictionary 4 th edition, at page 1474 defines resignation as a: "Formal renouncement or relinquishment of an offlce ... It must be made with intention of relinquishing the office accompanied by act of relinquishment." J20 7. 7. No such action was taken by the Plaintiff either by notice or without. The facts on record clearly show that the Plaintiff was on suspension during the whole time that he was appearing before the Defendant. When his advocates engaged the Defendant over a possible resolution, there was no mention of any resignation or dismissal. This means that at the time that this matter was being filed before this Court the Plaintiff was still an employee of the Defendant company though under suspension which would further explain the fifth relief in his pleadings requesting this Court to grant him an order formally separating him from the Defendant's employ. This is in addition to the Plaintiffs own admission in cross examination that he was not dismissed but suspended. 7 .8. The mere fact that the Plaintiff was on suspension could not have prevented him from protecting his interests by taking a step further in the form of an actual resignation if he deemed the contract as being at an end. And in the Time Trucking Limitedll case cited by the Defendant, it was held that the effect of a suspension in a contract of employment operates to suspend the whole operation of the contract for both parties. That a suspension cannot affect the question of J21 termination such as to create any supposed legal impediment which takes away the right of an employee not to be forced to work or to continue to work for another. 7.9. As far as the evidence on record shows, the administrative procedure was never completed and l commend the Plaintiff for trying to have the matter resolved quickly and amicably. In as much as I condemn the manner in which the Defendant handled the Plaintiffs case, I have not found any justification to hold that he was constructively dismissed or as argued in the alternative, unfairly dismissed. And based on the case of Caroline Tomaidah Daka v Zambia National Commercial Bank17> unfair dismissal occurs when an employee's contract is terminated in breach of a statutory provision. The unfairness contemplated in that regard 1s statutory. It is related and linked to the protection of the right of employment and promotion of fair labour practices of requiring employers to tenninate contracts of employment only on specified and reasonable grounds. No evidence was led to demonstrate the statutory provisions that were breached by the Defendant or that there was even a dismissal in the first place. I find that the first and second reliefs sought J22 by the Plaintiff have not been proven to requisite standard and thus automatically fail. 7.10. As regards the Plaintiffs claim for payments of emoluments that he is entitled to, I will begin by addressing his suspension. The Defendant's letter to the Plaintiff dated 131h December, 1994, from the Plaintiffs Bundle of Documents, does not indicate whether the suspension was with or without pay and in the absence of the conditions of service to guide this Court it is difficult to make an informed decision. I am mindful of the decision of the Supreme Court in the Kitwe City Counci1 12 case in relation to the issue of salaries having to be paid for the period that an employee was on suspension. The Supreme Court held that: " ... you cannot award a salary or pension benefits, . for that matter, for a period not worked for because such an award has not been earned and might be properly t.ermed as unjust enrichment ... " 7.1 Lin the absence of the conditions of service, I decline to comment on what the Plaintiff is entitled to whilst on suspension. In the same vein, I cannot give a position as to whether the Plaintiff is entitled to his emoluments safe to JB repeat my earlier position that the facts clearly indicate that he was an employee at the time of filing this suit. And in the case of Victor Kampamba Mulenga v Zambia China Mulungushi Textiles Joint Venture Limited18 it was stated that: "It is trite that employment relationships and the payment of salaries, dues, benefits and allowances are anchored tn contract; with clear terms governing such contracts ... We have stated in many employment cases that employees should not be subjected to conditions of service which did not exist during their service;" 7.12. This principle applies to all the courts of law in the sa.ine way that it applies and binds employees and employers in this jurisdiction. [ cannot assume what the Plaintiff is entitled to when it was made clear that his employment was governed by conditions of service even though the same, were not tendered into Court. The third relief therefore suffers the same fate as the first and second reliefs. 7 .13. The Plaintiff also pleaded that he has never been formally separated from the Defendant's employment. That he equally did not reach his retirement age. The document appearing on J24 page 11 of the Plaintiffs Bundle of Documents, showing the charge form from the Defendant's industrial relations section, indicates that the Plaintiff was 41 years as at 13'h August, 1998. By the time that the matter was being filed into Court, the Plaintiff should have been at least 53 years of age. He has therefore asked this Court to grant him an order separating him from the Defendant company. 7 .14. The only provision that empowers a court to terminate a contract of employment is section 70 of the repealed Employment Act, Chapter 268 of the Laws of Zambia which is tied to the circumstance provided for in section 65 which speaks of a labour officer referring a matter to the courts before termination can be granted at the instance of a court. This section was enforced in the Time Trucking Limited11 case when the Court of Appeal found the 2 years suspension of the Respondent, to have been unreasonable, and terminated the contract of employment as that matter had been referred to that Court by a labour officer. That is not the case in casu as this matter came directly to this Court. In as much as I sympathize with the Plaintiff, the evidence on record speaks for itself. And as already stated, the burden is J25 on the Plaintiff to prove his claims and not the other way around. 1 find no merit in the fifth relief. 8.0. CONCLUSION 8.1. The upshot of my decision is that the Plaintiff has failed to prove his claims against the Defendant. I dismiss this action with costs to the Defendant. 8.2. Parties are at liberty to appeal against the decision . . . . . . . . . . . . • M . . Zulu HIGH COURT JUDGE