Konkola Copper Mines PLC v Mulambia (Appeal 53 of 2013) [2015] ZMSC 48 (9 September 2015)

IN THE SUPREME COURT OF ZAMBIA APPEAL NO. 053/2013 HOLDEN AT KABWE (CIVILJURIDICTION) BETWEEN: KONKOLA COPPER MINES PLC APPELLANT AND GREENWELL MULAMBIA RESPONDENT CORAM: Mambilima, CJ, Hamaundu and Wood, JJS. On 1 ph August, 2015 and 9th September, 2015 For the Appellant: Mr. M. Nyirenda- Messrs Kafunda and Company. For the Respondent: Mr. K. Msoni-Messrs J. B. Sakala and Company. JUDGMENT Wood, JS, delivered the Judgment of the Court. CASES REFERRED TO: 1. Zambia National Provident Fund v Yekweniya Mbiniwa Chinva (1986) Z. R. 70. 2. Priscilla Ngenda Simvula Kalisilira and Zambia National Commercial Bank Pic, SCZ Judgment No. 8/2015. 3. Zambia Ainvays Corporation Limited v Gershom B. B. Mubanga (1990- 1992) Z. R. 149. 4. Zambia Consolidated Copper Mines v Matale (1995-1997) Z. R. 144. J2 5. Swarp Spinning Mills Pic v Chileshe and others (2002) Z. R.23. This is an appeal from a decision of the Industrial Relations Court ordering that the respondent be deemed to have been retired by the appellant with full benefits from the date of the judgment. The facts of this appeal are that at the time of his dismissal, the respondent was employed by the appellant as a Lands and Property Management Officer. One of his duties included supplying stationary to departments at the appellant's general offices. Sometime in July, 2003, the appellant received an anonymous letter alleging that the respondent was raising requisitions for toner cartridges on behalf of various sections of the appellant's general offices, but that the toner cartridges were not reaching the intended users. Following this tip off, the appellant instituted investigations into the allegations made against the respondent. Thereafter, the respondent was charged with failing to account for company property and non-compliance with established procedure. The particulars of the charges were that between January, 2003 and J3 June, 2003, the respondent made 83 orders for 1,064 toner cartridges but failed to account for 484 toner cartridges valued at $35,174.01 The charges also stated that the respondent failed to keep a record of the toner cartridges that he received and how he issued them out to the end users in accordance with company procedure. In his exculpatory letter dated 6:h August, 2003, the respondent admitted that he did not have a register in which he recorded the details of the items requisitioned for and who the end users were. He, however, stated that he kept picking slips and emails for the requisitions made by the end users. The picking slips were documents generated after an order for an item was made. Upon delivery of the item, the respondent had to verify the correctness of the item ordered and if satisfied, would sign two copies of the picking slips. He would return one copy to the person delivering the item and retain one copy for the record. The respondent admitted that there were some picking slips missing and he could not explain how they went missing. Despite accepting liability for the missing picking slips, the respondent insisted that J4 the toner cartridges whose picking slips were missing had reached the intended users. On 22nd August, 2003, the appellant convened a disciplinary hearing at which the respondent was found guilty as charged and dismissed on the very day of the disciplinary hearing. The respondent was not satisfied with the manner in which his employment was terminated and filed a complaint in the Industrial Relations Court on 12th December, 2003, claiming that his dismissal was wrongful, unfair, selective and a clear act of victimisation. He asked for an order of reinstatement and payment of salary arrears and allowances or in the alternative, damages for wrongful or unlawful termination of employment. In its judgment, the Industrial Relations Court found that ordering of items was done electronically and had to be approved by the respondent's supervisor. When the items ordered were ready, the system would generate two picking slips which the respondent would sign after verifying the items supplied and one slip would remain with the appellant after the end user collects and signs for the items ordered. The court also found that a number of picking slips representing 484 toner cartridges were missing and that the J5 respondent had failed to identify the end users who collected the 484 toner cartridges. The court found that the appellant was properly found liable for the offence of failure to account for company property. The court, however, found that the offence of failing to followestablished procedure had not been proved because the appellant did not have an established procedure on record keeping. On the propriety of the penalty imposed on the respondent, the court found that the Disciplinary Code and Grievance Procedure was a mere guide and the punishment to be imposed on an erring employee depended on the severity of the offence. The court, however, found that the appellant did not properly investigate the case. Since the requests were computer generated, the appellant was in a position to know who the end users were and could have easily verified whether or not the end users collected the toner cartridges. The court was of the view that the appellant wrongly concluded that the respondent personally benefited from the cartridges, hence the severe punishment of a summary dismissal. The court found that there was nothing to take the case from the realm of warnings as provided for in the Disciplinary Code and Grievance Procedure and accordingly set J6 aside the sanction of a summary dismissal and imposed a warning. On account of the time that had passed since the summary dismissal, the court ordered that the respondent be deemed to have been retired with full benefits with effect from the date of the judgment. The appellant was not satisfied with the judgment of the Industrial Relations Court and filed in two grounds of appeal. Ground one of the appeal was that the Industrial Relations Court erred in law to retire the respondent having found that he was guilty and warning him, as it did not take into account the loss suffered by the appellant as an aggravating circumstance. In ground one of the appeal, Mr. Nyirenda submitted that the Industrial Relations Court erred when it substituted the penalty of a dismissal with that of a warning despite having found that the respondent had failed to account for 484 toner cartridges belonging to the appellant. It was argued that the appellant failed to account for the property in terms of clause 4.3.2 (d) and 3.9.1 of the Disciplinary Code and Grievance procedure, causing the appellant loss of the colossal sum of US$35,174.01. Mr. Nyirenda observed that the respondent's argument in the court below was that the J7 appellant did not follow procedure m investigating the matter and meting out the sanction. He, however, observed that during investigations, the respondent admitted that he had failed to account for the toner cartridges and that his record keeping was poor. This, he contended was the basis of the guilty verdict. He argued that the court below not only misapprehended the law, but was also inconsistent when it concluded that the punishment was wrong and unfair despite finding that the respondent had failed to keep a proper record. Mr. Nyirenda relied on the case of Zambia National Provident Fund v Yekweniya Mbiniwa Chinua1 to argue that in determining the appropriateness of a sentence, regard must be had to the gravity of the offence and the fact that the complainant had committed the offence. In response to ground one of the appeal, Mr. Msoni submitted that the Industrial Relations Court was on firm ground when it found that despite the respondent's failure to account for 484 picking slips, there was no evidence showing that the respondent had personally benefitted from the loss of the cartridges. Mr. Msoni submitted that at the hearing of the matter, there was no evidence J8 showing that even though the picking slips were missing, the toner cartridges were not received by the end users that requested for them and also that the appellant made any payment in respect of the cartridges whose picking slips were missing. We have considered the judgment appealed against and the arguments in support of this ground of appeal. The main issue in this ground of appeal is whether the Industrial Relations Court erred when it substituted the penalty of summary dismissal with a warning despite finding that the appellant had proved the charge of failing to account for company property. The offence of failing to account for company property fell under Clause 4.3.2 of the Disciplinary Code and Grievance Procedure which provided for offences relating to sub-standard performance. The Disciplinary Code Schedule of Offences and Sanctions provided for the penalty of an unrecorded warning in respect of a first offender guilty of an offence related to substandard performance. The Industrial Relations Court was on firm ground when it substituted the penalty of a dismissal with that of a warning because the evidence on record showed that the respondent was a first offender with a clean J9 record. In this regard, a recorded warning would have sufficed. In the case of Priscilla Ngenda Simvula Kalisilira and Zambia National Commercial Bank Plc2 in which the appellant questioned her dismissal from the respondent company, we found that the appellant was guilty of desertion and accordingly substituted the penalty of a dismissal with that of a discharge as provided for in the respondent's Disciplinary Code of Conduct. As stated In its Disciplinary and Grievance Procedure, the categorisation of the various offences was meant to provide uniformity of procedure in the appellant company. According to the guidelines in the Schedule of Offences and Sanctions, a dismissal could be handed down where an employee was guilty of theft, fraud, unauthorised possession of company property, persistent unsatisfactory behavior, poor job performance, where the conduct of an employee amounts to a serious breach of contract or where the less severe disciplinary measures had failed. These were the same guidelines given in clause 3.9.1 of the appellant's Disciplinary Code and Grievance Procedure which provided for the penalty of a dismissal. The appellant was not found guilty of any of the offences listed above. The appellant was, therefore duty bound to follow the provisions of • JlO its Disciplinary and Grievance procedure as it related to the penalty to be imposed on the respondent. This ground of appeal lacks merit and is accordingly dismissed. Ground two of the appeal was that the Industrial relations Court misapprehended the law when it deemed the respondent retired from the date of its judgment and not from the date of his dismissal in the absence of special circumstances warranting such an award. In this ground of appeal, Mr. Nyirenda contended that in the absence of special circumstances to warrant the order of retirement with full benefits, the remedy for wrongful or unfair dismissal is in damages. In support of this position, Mr. Nyirenda cited the case of Zambia Airways Corporation Limited v Gershom B. B. Mubanga3 in which we found that special circumstances existed which warranted an order of re-instatement and an award of damages which was placed at 12 months pay in respect of the wrongful dismissal. In the alternative, Mr. Nyirenda argued that should this court find that the lower court was on firm ground when it deemed the appellant to • J1I have been retired, then the effective date be the date of the judgment and not the date of separation. In response to ground two of the appeal, Mr. Msoni submitted that although the practice of the court is to award damages as a remedy in cases of wrongful and unfair dismissal, the court has, in some instances deemed complainants to have been retired with full benefits. To support his argument, Mr. Msoni cited the case of Zambia Consolidated Copper Mines v Matale4 in which we upheld the decision of the court below to deem the respondent as having retired with full benefits from the date of separation. He asked us to stand by our decision in that case. We have considered the arguments in respect of ground two of the appeal and the authorities cited therein. Our considered view is that the Industrial Relations Court erred when it retired the respondent with full benefits despite his alternative claim for damages and having found that he was guilty of failure to account for company property. In the case of Swarp Spinning Mills Plc v Chiles he and othersS, we held that: • J12 "The nonnal measure of damages applies and will usually relate to the applicable contractual length of notice or the national reasonable notice where the contract is silent. (ii) The nonnal measure is departed from where the tennination may have been inflicted in a traumatic fashion which causes undue distress or mental suffering. (iii) While there should be compensation over and above the contractual tenninal benefits already paid, that is beyond the nonnal measure, to equate such damages to the salary and perquisites over a two year period, was wrong in principle and produced an excessive award. " Our view is that there were no special circumstances m this case which warranted the departure from the normal measure of damages as discussed in the case above. In this regard, we wish to distinguish the case of Zambia Consolidated Copper Mines v Matale4 which Mr. Msoni has relied upon, from the facts in the appeal before us. In the Matale case, the Industrial Relations Court found that there was a wrongful and unwarranted termination since the wrong authority terminated the employment and there was no offence committed by the complainant. The court also found that the rules of natural justice and the disciplinary code had not been followed. In this appeal before us, the appellant followed the correct procedure in charging the respondent and he was found guilty of • J13 some wrongdoing. The only error on the part of the appellant was the imposition of a wrong sanction. The respondent having been found guilty of failure to account for company property, the order of retirement with full benefits was not justified and would exceed the normal measure of damages awarded in such cases. An award for damages equal to the contractual length of notice would have satisfied the respondent's claim. Further in the case of Zambia Ainuays Corporation Limited v Gershom B. E. Mubanga3, we held that for the court to order that a complainant be paid the full salary and arrears from the date of the purported dismissal, there must be evidence called to show that the respondent had actually suffered damages to the extent of his former full salary. We also held that it was the duty of the respondent to mitigate his loss following the dismissal. In the absence of evidence to justify the payment of a full salary and arrears, it was held that the court must do the best it can to award the respondent fair recompense. In the appeal before us, the respondent did not adduce any evidence to justify an award equivalent to the full extent of his salary. The record is also silent ~.r 'on- whether • or not he found altGnlative employment after termination. We,.:accordingly, substitute the order of: retirement with full bcq,oi,'t'swith an order for damages equiv~i~nt to three months' salary and perquisites. It follows from what we have stated above that ground two of the appeal has merit. The net result is that this appeal succeeds to the extent indicated. The parties shall bear their own costs. =' .. C~, r. I.. I.e. MAMBILIMA CHIEF JUSTICE .----,--'. .i I ~, (" '--t-!~ :>.---:- .•••.. , I ," _~ ,_..... , ..................... cf.~-,'-..•..;o •.••••••••• E. M. HAMAUNDU SUPREME COURT JUDGE A~~- SUPREME COURT JUDGE