Kelvin Mutale and Anor v Kansanshi Mining Plc (APPEAL NO. 198/2018) [2019] ZMCA 345 (12 November 2019)

IN THE COURT OF APPEAL OF ZAMBIA HOLDEN AT LUSAKA ( Civil Jurisdiction) APPEAL NO. 198/2018 BETWEEN: KELVIN MUTALE GILBERT MWENDA AND 1 2 NUV 2019 ST APPELLANT ND APPELLANT KANSANSHI MINING PLC RESPONDENT CORAM: CHISHIMBA, NGULUBE, SIAVWAPA, JJA On 25th September and 12th November 2019 For the Appellant: J. Mataliro, Messrs Mumba Malila and Partners For the Respondent: H. Pasi, Messrs Manda, Pasi Advocates JUDGMENT NGULUBE, JA delivered the judgment of the Court. CASES REFERRED TO: 1. 2. 3. 4. 5. 6. 7. 8. 9. 10. 11 . 12. 13. Chilanga Cement Pie vs Kasote Singogo (2009) Z. R. 122 Attorney-General vs Kakoma (1975) Z. R.21 Rabson Sikombe vs Access Bank Zambia Limited, SCZ/ 8/ 309/ 20 13 ZESCO Limited vs Ignatius Muleba Sule, SCZ Judgment 1 70 of 2002 James Zulu and others vs Chilanga Cement Pie, Appeal Number 12 of 2004 Butler Asimbuyu Sitali vs Energy Regulation Board, Appeal Number 12 of 2017 The Attorney-General vs Roy Clarke (2008) Z. R. Vol 1. 38 Barclays Bank Zambia Limited vs Manda Chola and Ignatius Mubanga, (1997) S. J.35 Amiran Limited vs Robert Bones, Appeal Number 22 of 2010 Boniface Siame us Mopani Copper Mines Pie, Appeal Number 75 of 2013 Samatemba vs Zambezi Waterfront Limited, Appeal Number 110 of 2011 Undi Phiri us Bank of Zambia (2 007) Z. R. 186 Zambia National Provident Fund vs Chirwa (1986) Z. R. 70 14. 15. National Breweries vs Philip Mwenya, SCZ Judgment Number 25 of 2002 Chimanga Changa Limited vs Chipango Ngombe (2010) Z. R. Vol 1. 2 08 J2 LEGISLATION REFERRED TO: 1. Industrial and Labour Relations Act, Chapter 269 of the Laws of Zambia INTRODUCTION 1. This is an appeal against a Judgment of the High Court, Industrial Relations Division, delivered on 21 st June, 2018 by Mr. Justice Derrick Mulenga. The appellants filed a notice of complaint on 28th July, 2017 with an affidavit in support. They contended that the respondent unlawfully terminated their employment after they were maliciously accused of stealing copper belonging to the respondent. 2. The Court heard the matter and found that the appellants faile d to prove, on a balance of probabilities, that they were wrongfully, unfairly and unlawfully dismissed from employment and dismissed their claims for lack of m erit and being superfluous. BACKGROUND TO THE APPEAL 3. The appellants presented a notice of complaint on 28th July, 2017 with an accompanying affidavit, stating that on or about 6 th September, 2015, they, together with one Sydney Mubanga, were unreasonably and maliciously accused of stealing copper which J3 belonged to the respondent. As a consequence, they were suspended and their salaries were withheld pending the determination of the criminal prosecution that was instituted against them in the Subordinate Court. 4. However, their co-accused, Sydney Mubanga, continued to receive his salary. On or about 27th June, 2016, the appellants, together with Sydney Mubanga, were acquitted and sometime in August 2016, Sydney Mubanga's suspension was lifted. The appellants were then served with letters of summary dismissal on 25th August, 2016, which were backdated to 21 st September, 2015. 5. The appellants contended that they were not charged, nor were they accorded a hearing in accordance with the respondent's disciplinary code of conduct and that they did not steal or attempt to steal the respondent's copper. They complained that they had been treated differently from Sydney Mubanga who was similarly circumstanced with them. They accordingly sought an order that the termination of their employment contracts was unfair, wrongful and unlawful and further sought thirty-six months salaries or such high amounts as the court would deem fit as damages for loss of employment. 6. They further sought an order for the payment of salary arrears for J4 the period 6 th September, 2015 to the date of termination, damages for mental torture, distress, pain, suffering and anguish inflicted on them by the resp on dent. An order that they be paid their contributions, pension benefits and that they be retained on the respondent's payroll till full payment of their benefits, with interest on all sums of money found due, and costs. 7. The facts before t h e lower court were that on 6 th September, 2015, the appellants were suspended for having removed copper riverts without the authority of the respondents and were apprehended on th e same day. The respondent instituted disciplinary processes through its security department and a report was subsequently rendered. DECISION OF THE LOWER COURT 8. Upon considering the facts and the evidence before it, the court found that the respondent could not have instituted trumped-up charges again st the appellants and h eld that they had failed to prove on a balance of probabilities that their respective dismissals from employment were wrongful, unfair or unlawful. The court stated that it found no documentary evidence to support the appellants' assertions that their suspensions were made pending JS the determination of the criminal case that was instituted against them in the subordinate court. 9. The learned trial Judge referred to clause 5 of the respondent's disciplinary code, which provides for the suspension of an employee from work. The said clause provides that - Suspension 5. in certain circumstances, where it is considered a risk to the business or the presence of the employee is deemed to be detrimental to the disciplinary process, a department manager, in consultation with the Human Resource Department shall sanction a suspension from work. The court found that the appellants received their last salaries on 30th September, 2015 and did not receive any salaries from the respondent t h ereafter. The court concluded that the appellants were summarily dismissed from employment at the disciplinary hearing which was held on 19th September, 20 15 and that this was why Sydney Mubanga continued to receive his salary during the period of suspension as he was re-instated. 10. The court went on to find that the respondent did not violate its JG disciplinary code in the manner it treated the appellants and that there were no terms and conditions of service which entitled the appellants to reinstatement, subsequent to being acquitted in the criminal proceedings that were instituted against them. The court was of the view that the appellants did not adduce any evidence to demonstrate that they were treated differently from Sydney Mubanga and found that the respondent acted reasonably when it dismissed the appellants from employment and reinstated Sydney Mubanga. The court then dismissed the appellants' claims for lack of merit. THE GROUNDS OF APPEAL TO THIS COURT 11. Dissatisfied with the Judgment, the appellant filed two grounds of appeal couched as followed- 1. The court below erred both in law and fact when it found that the complainants (now appellants) had failed to prove on a balance of probabilities that their dismissal was wrongful, unlawful and unfair, considering the overwhelming evidence of blatant disregard of disciplinary procedure and in the absence J7 of unimpeachable evidence that the appellants were guilty of a dismissible offence. 2. The court below erred both in law and fact when it found that the respondent was justified in treating Sydney Mubanga differently from the appellants. THE ARGUMENTS PRESENTED BY THE PARTIES 12. Counsel submitted that the appeal attacks the finding of fact by the lower court on page 33 of the record of appeal that the respondent did not violate its disciplinary code in the manner it treated the appellants. He contended that this finding was contrary to the evidence on record and r eflected an improper evaluation of the evidence. We were referred to the case of Chilanga Cement Pie vs Kasote Singogo 1 where the Supreme Court stated that- "hap less and weak employees like the respondent need to be protected from the whims and caprices of powerful elements in large conglomerates such as the appellant who use their positions to antagonise employees." JS We wer e urged to remember that the appellants were mere weak employees who were up against a mining conglomerate. 13. We were further referred to th e case of Attorney-General vs Kakoma2 where the Supreme Court stated that- "a court is entitled to make findings of fact where the parties advance directly conflicting stories and the court must make those findings on the evidence before it and having seen and heard the witnesses giving that evidence." The cou rt was referred to pages 155 and 156 of th e record of appeal which t h e appellants contended disclosed the respondent's blatant disregard of its disciplinary code. Counsel argued that the appellants were not charged but were mer ely made to write statements without knowing the charge against them. It was further contended that the appellants' charge forms were not signed which indicated that t h ey were not charged with any offence. According to Counsel, the evidence of RW5, who stated that the appellants were charged was inadmissible as she was only informed by another person that the appellants were charged because she was n ot present. 14. Counsel further argued that RWS was inconsistent in her J9 testimony because on page 26 of the record of appeal, she indicated that the appellants were charged on 17th September, 2015 but in cross-examination, she stated that the appellants were charged on 18th September, 2015. It was further submitted that the lower court should have considered this evidence in its assessment and come to the conclusion that the appellants were not charged with the said offences. 15. It was contended that pages 120 and 122 of the record of appeal show that neither the appellants nor their repres entatives signed the charge form at the conclusion of the disciplinary hearing. Counsel argued that the evidence on page 240 of the record of appeal shows that the appellants were only given their letters of dismissal on 25th August, 2016 and were not given any disciplinary letter in 2015. We were urged to interfere with the lower court's findings of fact on the issue of the appellants having been charged and whether disciplinary hearings were held. 16. Counsel argued that the court erred when it failed to enter Judgment in favour of the a ppellants for wrongful dismissa l because it disregarded important evidence on record which showed that it failed to follow important procedures which go to J10 the right to be heard. It was contended that there was no unimpeachable evidence to show that the appellants were guilty of a dismissible offence. We were referred to the case of Rabson Sikombe vs Access Bank Zambia Limited3 at page J20 where the Supreme court directed that- "we must however stress that the position that we have taken with regard to an employer's failure to follow procedural imperatives is predicated on the commission by an employee of a dismissible offence or a transgression which the employee admits or is otherwise established by unimpeachable evidence." We were accordingly urged to enter judgment for th e appellants for unlawful dismissal. 17. On ground two, which was that the lower court erred in in law and fact when it found that the r espondent was j ustified in treating Sydney Mubanga differently from the appellants, we were referred to the case of ZESCO Limited vs Ignatius Muleba Sule4 and that of James Zulu and others vs Chilanga Cement Plc5 , where the Supreme court held that similarly circumstanced employees Jll ought to be similarly treated unless there 1s a valid reason justifying different treatment. 18. The court was referred to the case of Butler Asimbuyu Sitali vs Energy Regulation Board6 , where the Court of Appeal established that the trial court did not adequately distinguish the appellant's circumstances from those of his predecessor, a Mr Hibajene, so as to justify th at they were treated differently. Cou nsel contended that the appellants were s u spended with Sydney Muban ga until they were all acqu itted b u t the said Sydney Mubanga's su spension was lifted. The appellants were served with letters of summary dismissal which were backdated to 2 1st September, 2015, but they were only given to them on 25th August, 2016. 19. It was contended that the appellants had, by then earned a status of being entitled to unpaid salary, which was the status upon which the respondent terminated their employment. Counsel referred to the case of Attorney-General vs Roy Clarke7 , where the cou rt stated that- "As we understand discrimination in relation to people, it means treating similarly circumstanced people differently." J12 We were urged to enter Judgment for the appellants because they wer e treated differently despite being similarly circumstanced with Sydney Mubanga, who was reinstated after h e was acquitted by the subordinate court, while they were summarily dismissed. We were urged to allow the appeal. 20. The r espondent filed heads of argumen t in response to the two grounds of appeal . On ground one, it was submitted that on the totality of the evidence, the learned trial Judge found that the appellants were charged despite them not having signed the charge from. This was because the appellants submitted exculpatory statements to the charges and they were subsequently heard as is evidenced by the minutes that were produced by the respondent. 21. We were referred to the case of Barclays Bank Zambia Limited vs Mando Chola and Ignatius Mubangas, where the Supreme Court stated that no question of law or of mixed fact and law arose in the ground of appeal advanced and it was accordingly rejected. We were further ref erred to the case of Amiran Limited vs Robert Bones9 , in which the Supreme Court held that grounds of appeal from the decision of the Industrial Relations Court based on facts alone are incompetent and they were accordingly dismissed . J13 Counsel argued that s ince this matter was commenced in the Industrial Relations Division of t h e High Court, by way of complaint, then Section 97 of the Industrial and Labour Relations Act1 precludes the appellants from appealing on points of fact alone. 22. Counsel further submitted that the trial court's findings of fact were supported by evidence on record and that the appellants failed to adduce evidence to support the allegations that their respective dismissals were wrongful, unfair or unlawful. It was argued that the appellants were charged and knew the charges that were levelled against them, hence their exculpatory statements in writing. Counsel pointed the court to the evidence of RWS who referred to minutes of their respective disciplinary hearings at which they were represented by a shop steward from their trade union. 23. It was submitted that no reason was advanced to show why the respondent would lie that the appellants were charged and further fabricate minutes of the disciplinary hearings. Counsel contended that the court was entitled to consider the evidence and found that the appellants were charged and accorded hearings . It was argued that even assuming that the respondent failed to follow the J14 procedure in the disciplinary code, the dismissal would have still been upheld by the court below because there was no dispute that the appellants committed the offence in this case. 24. It was contended that the appellants did not show that they were prejudiced by not signing the charge form. We were referred to the case of Boniface Siame vs Mopani Copper Mines Plc 10, where the court stated that- "at common law, the overriding factor i n a case of dismissal is whether or not an employee is given an opportunity to be heard and exculpates himself before the decision to dismiss him is taken. " 25. On the argument that the appellants were dismissed 1n the absence of unimpeachable evidence that they had committed a dismissible offence, it was submitted that the burden was on the appellants to produce impeachable evidence that their dismissals were wrongful, unlawful or unfair. Counsel argued that there was enough evidence adduced by the respondent to establish that there were facts established upon which the dismissals were based and that the respondent acted reasonably in arriving at the decision to dismiss the appellants. 26. Responding to ground two, Counsel submitted that the appellants J15 did not receive their salaries from 30th September, 2015 onwards because they had been dismissed. On this ground, the appellants attacked the lower court's finding that the respondent was justified when it treated Sydney Mubanga differently. The appellants alleged that their salaries were withheld when they faced criminal prosecution while Sydney Mubanga continued receiving his salary and that when they were all acquitted, Sydney Mubanga's suspension was lifted but they were dismissed. 27. The appellants alleged that they were only dismissed on 26th August, 2016 but their letters of dismissal were backdated to 15th September, 2015. It was submitted on behalf of the respondent that the court below found that the appellants did not receive their salaries from 30th September, 2015 because they were summarily dismissed on 19th September, 2015. The court found that Sydney Mubanga received his salary because he was reinstated , as he was found with no case to answer after investigations were instituted. It was argued that the lower court found that an employer is entitled to treat employees who are charged with the same offence differently where investigations reveal different participation or lack thereof in the commission of the offence. 28. Counsel contended that the investigations which were conducted J16 exonerated Sydney Mubanga but implicated the appellants and they were found guilty of the offence that they were charged with . Counsel submitted that it would have been unfair to treat Sydney Mubanga in the same way as the appellants because he was cleared of all the allegations that were levelled against him. It was argued that the lower court was on firm ground when it found that the appellants were given an opportunity to be heard and that the employer acted reasonably when it dismissed them. We were urged to dismiss the appeal with costs to the respondent. 29. The appellant filed heads of argument in reply on 3 rd October, 2019. Responding to whether or not ground one is an appeal on facts only and whether it offends the provisions of Section 97 of the Industrial and Labour Relations Act, we were referred to the case of Samatemba vs Zambezi Waterfront Limited 11, where the court stated that - "a finding of fact becomes a question of law when it is a finding which is not supported by the evi.dence or when it is one made on a vi.ew off acts which cannot reasonably be entertained. " J17 According to the appellants' counsel, no charge was proffered against the appellants and that it was therefore shocking for the court to hold that the appellants were charged when they refused ever having been charged. Counsel argued that a charge in the criminal inquiry cannot be taken to constitute a charge in the administrative disciplinary inquiry and that the criminal acquittal should have absolved the appellants of any wrong doing. 30. According to the appellant's Counsel, documents were tampered with and dates were changed so that it appears that the appellants were given an opportunity to be heard. Counsel contended that the appellants were never charged and that the charge forms were a mere fabrication. It was contended that the dismissal letters were only prepared after the appellants were acquitted and that there was no appeal and no response to the appeal letters. We were urged to interfere with the lower court's findings of fact as they were not supported by the evidence. 31. On the second ground, Counsel submitted that Sydney Mubanga was not exonerated and referred us to the case of J18 Undi Phiri vs Bank of Zambia 12, where the court held that similarly circumstanced employees should be treated the same. Counsel contended that the appellants were treated differently and were denied the privilege that Sydney Mubanga enjoyed. We were urged to find that the appellants were unfairly treated. DECISION OF THE COURT 32. We have considered the arguments advanced by Counsel for both parties and have also considered the evidence on r ecord together with the judgment of the High Court. ISSUES ON APPEAL 33. In ground one, the appellants contend that the court erred in law and in fact when it found that the appellants failed to prove, on a balance of probabilities that their dismissal was wrongful, unfair and unlawful without considering the blatant disregard of disciplinary procedures and that there was no evidence to prove that the appellants were guilty of a dismissible offence. The appellants contend that the charge sheet in the respondent's bundle of documents was not signed by the appellants and that they were never charged with any offence. They further contend that their representatives did not sign the charge form at the J19 disciplinary hearing. 34. The appellants argue that the respondent failed to follow important procedure which goes to the core of the right to be heard. However, on page 124 of the record of appeal is exhibited a statement from the first appellant which he gave on 18th September, 2015, explaining how he went to dump slag on the night in issue. He signed the said statement. 35. Further, on page 125 of the record is a statement that was given by the second appellant stating that he went to the dump site at 19:00 hours and found the space full and proceeded to clean the dump space. On page 126 of the record are minutes of the disciplinary hearing that was held on 19th September, 2015. The first appellant was the accused while the 2 n d appellant was the witness. 36. On page 128 of the record, minutes of the case hearing for the 2 nd appellant are exhibited. Both sets of minutes are signed by the chairman and the secretary. We therefore form the view that the appellants were charged and heard at the disciplinary hearings. That being the case, we cannot fault the lower court's finding to J20 that effect because the record shows minutes of disciplinary hearings as well as exculpatory statements which each of the appellants signed. 37. The appellants contend that laid down procedure was not followed in terminating their employment. However, we are of the view that adherence to procedure is not the only factor which is considered when deciding whether the termination of an employee's employment was wrongful. 38. In the case of Zambia National Provident Fund vs Chirwa 13 , the Supreme Court dealt with a situation where there was non compliance with prescribed procedure in terminating the contract of service of an employee who had committed an offence that warranted termination of his contract of service. In the said case, the Supreme Court held that where it is not in dispute that an employee has committed an offence for which the appropriate punishment is dismissal, no injustice arises from a failure to comply with the laid down procedure in the contract and the employee has no claim on that ground for wrongful dismissal or a declaration that the dismissal is a nullity. 39. The evidence before us is that on 6 th September, 2015, the appellants were suspected of having, without the authority of the J21 respondent, removed copper riverts and were apprehended in the afternoon shift of that day. The respondent instituted investigations and a report was rendered on the findings. 40. The lower court referred to the case of National Breweries vs Philip Mwenya14 and found that the allegations against the appellants were not unfounded nor could they be said to have been made malafide by the respondent. The appellants made exculpatory statements and further referred to the record of disciplinary hearings that were held by the respondents in r espect of both appellants . The lower court concluded that the respondent could not have brought trumped-up charges against the appellants on the evidence before the court and that the appellants had failed to prove their case on a balance of probabilities. 41. The court held that their dismissals were neither wrongful, unfair or unlawful and that the appellants were summarily dismissed from employment at the disciplinary h earing which was held on 19th September, 2015. According to the court, this was the reason why the appellants' last salaries were r eceived on 30th September, 2015. 42. Having examined the record of appeal, we are satisfied that the J22 evidence on record is that the 1st appellant was found guilty of a iding and abetting the unauthorized removal of company property, these being the copper riverts at the hearing that was held on 19th September, 2015. The second appellant was found guilty of removing copper riverts from the smelter and dumping them in the bush near the slag dump area. The evidence of the second appellant was that he did this under the instructions of the first appellant. 43. The evidence of RWl in the lower court is that he found the second appellant dumping copper riverts in the bush near the slag dump site. Having considered this piece of evidence, we refer to the case of Chimanga Changa Limited vs Chipango Ngombe 1 5 , where the court held that- " ....... the employer does not have to prove that an offence was committed to satisfy himself beyond reasonable doubt that the employee commi tted the act in question. His function is to act reasonably in coming to a decision. " 44. We opine that the respondent acted reasonably in dismissing the appellants and that sufficient investigations were conducted to J23 establish what transpired on the material evening. We form the view that there was a substratum of facts upon which the respondent based its decision to dismiss the appellants. The dismissals were therefore neither wrongful, unfair nor unlawful. We do not find merit in the first ground of appeal and it is dismissed. 45. Turning to the second ground, whether the appellants were treated differently from Sydney Mubanga, the evidence on record is that the first appellant exonerated Sydney Mubanga when h e was interrogated by the respondent's security personnel. The appellants did not implicate Sydney Mubanga and when investigations were conducted, he was exonerated. 46. We are therefore of the view that there was no disparity in the manner 1n which the appellants and Sydney Mubanga were treated by the respondent because they were not similarly circumstanced. He was not found guilty of involvement in the offences and was reinstated while the appellants were summarily dismissed. We do not find merit in the second ground of appeal and it is accordingly dismissed. • • CONCLUSION J24 47. Both grounds of appeal having failed, the net result is that this appeal is dismissed for lack of merit. The parties shall bear their respective costs of this action. -9 F. M. CHISHIMBA COURT OF APPEAL JUDGE P. C. M. NGULUBE COURT OF APPEAL JUDGE M. J. SIAVWAPA COURT OF APPEAL JUDGE