Humphrey M. Kabwe v ZESCO Limited (APPEAL NO. 39/2009) [2013] ZMSC 64 (17 January 2013)

' • ,i J1 IN THE SUPREME COURT FOR ZAMBIA HOLDEN AT NDOLA/LUSAKA (CIVIL JURISDICTION) APPEAL NO. 39/2009 BETWEEN: HUMPHREY M. KABWE APPELLANT AND ZESCO LIMITED RESPONDENT Coram: Chirwa, Chibesakunda and Chibomba, JJS. On 2 nd September, 2009 and 17th January 2013 For the Appellant In person For the Respondent Mr. W. Chilundu, Principal Legal Officer (late) JUDGMENT Chibesakunda, Acting CJ., delivered the Judgment of the Court Cases referred to: 1. ZCCM V Jackson Munyika Siame and Others (2004) Z . R. 193 Due to the retirement of Hon. Mr. Justice D. K. Chirwa, this judgment is a majority judgment. The late delivery of the judgment has been due to circumstances beyond our control for which we .. J2 This is an appeal against the Industrial Relations Court judgment delivered on or about 5 th February, 2009 in which the Industrial Relations Court dismissed the Appellant's complaint against his dismissal from employment on the 16th February, 2004. The brief history of this appeal on which there was common ground is that the Appellant was employed by the Respondent on a date which was not specified. The Appellant was employed in the Maintenance department of the Respondent. On the 26th December, 2003, the Appellant was called in for work as there was a major breakdown at sub-station No. 1 in Kitwe. He worked from 02:00 hours until he completed the job at around 12:00 hours. He handed over the equipment to the operations people who were required to do the switching on. He then proceeded home. According to the Appellant, power was switched on in the whole of Riverside except for G and G Bakery whose fuse had blown and so was therefore, not fully back on supply. The evidence on v;hieh there was dispute is that when he knocked off, he was soon told by one of his supervisors to go to G J3 and G Bakery and attend to the fault there. He informed the supervisor that the fault at G and G Bakery required another group of workers from the Respondent other than from Maintenance. The Appellant told the court that according to the Respondent's safety rules, the switching on and off of high voltage apparatus had to be done by those trained in that field. So he did not go to G and G Bakery. When he reported for work on Monday, he was then summoned to the Divisional Manager's office. He was then told that he had disobeyed the instructions from his supervisors in that he did not go to G and G Bakery. He was then suspended. A disciplinary meeting was called. According to the Appellant, the panel which heard _ his case was selected by the Divisional Manager and as such, he, the Appellant, did not think that he would have a fair hearing. According to the Appellant, some days after the hearing, he received a dismissal letter on the charge of failure to obey instructions. He appealed to the Divisional Manager. The appeal was dismissed. In cross examination, the Appellant maintained that the problem at G and G Bakery was not suitable for employees J4 employed in the Maintenance department. He maintained that he was not in charge of switching on, he also maintained that he did not switch off his phone to make himself unavailable to be reached on the phone. The Respondent, 1n rebuttal to the Appellant's evidence, maintained that there was a reported power failure at G and G Bakery and that a number of employees had gone to work on the fault but failed to restore power. So assistance was sought from the Maintenance department to sort out the problem. It was, therefore, suggested that the Appellant work on that fault the following day, the 27 th December, 2003. On the 27 th December, 2003, the Appellant did not report to work on this fault. When they tried to reach him, he had switched off the phone. The Respondent had to mobilize personnel from Maintenance to sort out the problem and this problem was sorted on 29 th December, 2003. At the close of the case, the Industrial Relations Court an a Jysed the evidence and concluded that the Appellant refused to obey instructions for reasons best known to himself. The court also JS held that his explanation of his failure to attend to the fault at G and G Bakery flew in the teeth of the evidence as he should have reported and then raised the issue of ineligibility to do the job when he arrived at the scene. The court also addressed its mind as to whether or not in arriving at that decision the court ignored its fundamental role of administering substantial justice unencumbered by rules of procedure as was articulated by this court in the case of ZCCM V Jackson Munyika Siame and Others 1 . The court responded that taking into account the fact that the Appellant refused to obey lawful instruction, the Appellant was lawfully dismissed. Aggrieved by this decision, the Appellant has appealed to this court raising five grounds:- "1. The learned trial court erred in Law in concluding the trial of the case without proof of evidence. 2. The trial court erred .in Law in finding for the Respondent without giving proper reasons. 3. The learned court erred by not considering the fact that the fault was wrongly reported to the wrong department; therefore, my presence was not needed. J6 4. The lower court erred in law and fact by concluding that I committed an offence without considering my evidence on record. 5. Any other grounds may be advanced with the leave of the court during the case hearing." At the hearing of the appeal, the Appellant relied on his filed heads of argument. The summary of his arguments on all ground is that the court below erred in law and fact in holding in favour of the Respondent when there was no evidence to support such conclusion. He argued that the Industrial Relations Court never gave reasons for accepting the Respondent's catalogue of the events which occurred before he was dismissed. The Appellant argued that the court below never considered his evidence of what led to - his failure to report on duty. The Respondent in response argued that the lower court was on firm ground in reaching the conclusion that the Appellant was lawfully dismissed. According to counsel for the Respondent, the court below carefully evaluated the evidence of the Appellant as can be seen from pages 6 to 9 of the judgment. Counsel argued that in J7 the court below, the Appellant was given a chance to explain what happened and also to support his claim with documents which he ought to have produced before the court. Counsel disputed the Appellant's argument that a report was made to the wrong department by pointing at page 60 reflecting the minutes of the disciplinary committee where it is recorded that:- "He said he agreed with Mr. Chimfwembe that they would maintain the RMU the following day but that Mr. Chimfwembe did not come to pick him up the following day as arranged. Mr. Kabwe claimed that he did not know that G & G was off supply and, therefore, did not think that the job was urgent." It was submitted that these minutes establish that the Appellant accepted that the report on the fault at G and G Bakery was made to the right department. Those were the arguments before us. We have considered the appeal and the issues raised in the appeal. As indicated in our judgment, 1nost of the facts relating to this matter arc not in dispute. These are that the Appellant was an , J8 employee of the Respondent. He was 1n the Maintenance department. On the 26 th December, 2003, he was summoned to TNork on--a--fattlt. He did his-part. But-----the-foHowing-day, 27th December, 2003, there was another urgent matter to be sorted out. It was agreed between him and the supervisor that that it would be attended to the following day. It is also common ground that on the date the Appellant was meant to be at G and G Bakery, he did not 4lt report on duty. A number of attempts were made to him to contact him. These attempts were a total failure as his phone was switched off. The Appellant has argued that this was so not because he deliberately switched off his mobile phone. We have looked at this piece of evidence. We entirely agree with the approach by the Industrial Relations Court that the e Appellant, having been instructed to come back the following day to look at the fault at G and G Bakery which he ignored, was in breach of instructions given to him by the senior man. What fortifies our conclusion is that even the Appellant knew these instructions. He did not report to G and G Bakery. Neither did he explain his absence from G and G Bakery. . ' .. •' ' , .. J9 We, therefore, confirm the findings of the lower court that the Appellant unlawfully disobeyed instructions from his senior. His dismissal, therefore, was proper. We dismiss the appeal. We order no costs. L. P. CHIBESAKUNDA ACTING CHIEF JUSTICE •.....••••...••.•....•....••••••.........••••. H. CHIBOMBA SUPREME COURT JUDGE