Konkola Copper Mines v Kaleya (Appeal 87 of 2015) [2018] ZMSC 41 (8 June 2018)

IN THE SUPREME COURT OF ZAMBIA HOLDEN AT NDOLA (CIVIL JURISDICTION) APPEAL NO 87 /2015 BETWEEN: KONKOLA COPPER MINES APPELLANT AND JIM KALEYA RESPONDENT CORAM: MAMBILIMA CJ, MWANAMWAMBWA, DCJ and MUTUNA JS; on the 5th and gth days of June, 2018 For the Appellant For the Respondent Mr. T. Chibeleka, of ECB Legal Practitioners In person JUDGMENT MAMBILIMA CJ delivered the Judgment of the Court. CASES REFERRED TO: 1. BANK OF ZAMBIA V JOSEPH KASONDE ( 1995-1997) ZR 238 2. NATIONAL BREWERIES LIMITED V PHILLIP MWENYA (2002) ZR 118 3 . CAROLINE TOMAIDA DAKA V ZAMBIA NATIONAL COMMERCIAL BANK (2012) ZR 8 VOL 3 4. THE ATTORNEY GENERAL V RICHARD JACKSON PHIRI (1988-1989) ZR 121 5. KAMBATIKA V ZESCO LIMITED APPEAL NO. 186/2000 UNREPORTED 6. CHIMANGA CHANGA V STEPHEN CHIPANGO (2010) ZR 208 VOL 1 7. JEFFREY TEMBO V STANBIC BANK ZAMBIA LIMITED APPEAL NO. 153/2011 UNREPORTED 8. WILSON MASAUSO ZULU V AVONDALE HOUSING PROJECT LIMITED (1982) ZR 172 J1 • 9. NDONGO V MOSES MULYANGO AND ROOSTICO BANDA (2011) ZR 10. SAMSON KATENDE & CRABY BERNARD (2011) ZR VOL. 2 112 WORKS REFERRED TO: a. EMPLOYMENT LAW IN ZAMBIA, W. S. MWENDA page 48 b . BLACK'S LAW DICTIONARY lOTH EDITION BRYAN A . GARNER THOMSON REUTER MINNESOTA USA 2014 This appeal is from the decision of the High Court, dated 23rd February, 2015 in which the Respondent was awarded 12 months' salary and allowances as damages for wrongful dismissal. The facts leading to this litigation are substantially not in dispute. The Responden t and four other employees of the Appellant Company were arrested on 13 th August, 2010 in connection with th e theft of 27, 771 tonnes of export coppe r cathodes valued at US $ 190,322.73 from Konkola Copper Mine (KCM) . The Respond ent and his co-accused made four appearances in court but they were subsequently discharged on 9 th February, 20 11 when the state entered a no lle prosequi in th e criminal case. During the time that the Respondent was facing criminal charges, the Appellant commenced its own internal inquiry into the th eft. The Respondent was, consequ ently, placed on suspension from 17th Au gust, 2010 to p ave way for investigations. Upon J2 • completion of the inquiry, the Responde n t was writte n to and given 48 hours in which to show cause why disciplinary a c tion should not be taken against him for fra ud ; fa lsifying, uttering and giving false evidence in contravention of clause 2.4 .6 (a) (ii) of the Appellant 's disciplinary code . The said letter under the hand of Mr. Am al Menza; head, Marketing and Logistics , read as follows :- " Dear Jim , Re: Falsifying and Uttering Disciplinary Code 2.4.6 (a) (ii) Following investigations carried out by KCM security into the allegation of fraud on your part in which KCM lost 29,771 tons (16 bundles) of export copper cathodes valued at US$190, 33. 73 which was stolen from Nkana plant on 27th July 2010, you originated the above loading permit number 28681 which mentioned theft. facilitated • On 26th July 2010 you prepare d and signed loading permit number 28681 from a forged loading schedule order number 314 which was falsely prepa re d , purporting that truck registration number ABJ 1214; trailer number ABB 6097, being driven by Mr. Vherem Nyikayaramba, passport number 16893 of Cross Country (hauler) was genuinely authorised by Access Freight to come and loa d export copper cathodes from KCM Nkana to Durban, when in fact not. • • On the basis of the loading permit you prepared, the mentioned truck was loaded, the loading list and customer invoice documents prepared and the copper was taken out of the plant to unknown destina tion. Investigations conducted at Road Traffic and Safety Agency (RTSA) in Lusaka established th a t registration number ABJ 1214 which was on the fictitious t ruck was for a Nissan Sunny car in Lusaka, and Access Freight denied having sent the truck in question to come and load copper on their behalf. • The said truck, the driver and the 29,771 tons of export copper cathodes has not been traced and is believed to be stolen. J3 In view of the above , you should show c a use why disciplinary action cannot be taken against you for fra ud (falsifying and uttering and giving false evidence) involving the theft of 29, 771 tons copper cathodes valued at US $190,322.73 which was stolen from KCM Nkana plant within 48 hours. " Upon receipt of this lette r , the Respond ent wrote to exculpate himself but the Appellant was not satisfied with his explanation. It proceeded to formally charge h im. A disciplinary h earing was condu cted on 30th Se ptember , 2 010 after which the Respond en t was summarily dismissed. He a ppealed to the Group Manager - Safety but his appeal was rejected. He launched a second app eal to the Head Process- New Sm e lte r who handled the matte r on b ehalf of the Chief F inancial Officer. It was a lso uns u ccessful. He was finally summarily dis missed on 3 0 th December , 2 0 10. The Respondent contes t ed his dis missal in the High Court. He took out a Writ of Summons again st the Appellant on 25th March , 2011 in which he sou ght the following reliefs- 1. Damages for false imprisonment 2. Damages for malicious prose cution 3. Damages for wrongful and unlawful dismissa l or termination of employment 4. Any other relief the court dee ms fit 5. Interest and costs J4 .. Among the particulars p leaded, for purposes of this a ppeal, w er e loss of employment and all entitlem e nts as well as loss of retirement benefits . The Re spondent contended , in his Statement of Claim, that he was wrongfully charged with fa lsifying and u ttering, and that subsequently, h e was unlawfully dismissed from th e Appellant's employment. That h e had no reason to doubt the a u th enticity of the loading schedule from whic h he prepared the loading permit. That in any event, the entire process of loading was recorded by a video camera and the video footage would h ave shown the role played by each employee in the loading section. That it was not r eas onably practicable for the Respondent to d etect fraud on the loading schedule. The Respondent's testimon y 1n the Court b elow was th a t on 2 5 th July , 2 010 h e prepared loadin g p ermit No. 2 868 1 for a truck, registration no. ABJ 1214, b ased on an order that h e found in the in-tray on his d esk. He told th e Court tha t h e was alerted by one, Julius Chinyama, a n employee of a transporting company called Bridge Shipping, that a Mr. Mvula Kanyifwa of Access Freight had JS dropped off the order b ecau se his (Mvula Kanyifwa's) computer had a problem. It was the Respondent's evide n ce that since th e loading permits were pre-approved by his supe rior, Mr. Master Chirwa, he took the permit to his supervisor Mr. J ohn Kaongolo for authorisation. He explained that h e did not hand over th e p ermit to security the same d ay a s r equired because the truck on which to load the copper was n ot physically a vailable. That on 26th July, 2010 he decided to d ate s t a mp the p err11it and hand over copies to security and the Loading/ Shipping Department, in the hope that the truck would eventu a lly s h ow up . That h e learnt that the truck had in fact loaded and h ad disappeared with the load when the police picked him up on 13th August, 2010. The Respondent t old the Court that n orma lly, it was only after a permit is handed over to the security a nd the Loading/ Shipping Department, that copper is loaded on t o the truck. That after loading, security counterchecks the d e tails of the truck and captures the driver and truck on closed circuit television (CCTV) cameras. The truck is only released after the driver signs for the copper and a checke r from the transporter confirms the details. The J6 « exceptional circumstances, such as when there is an internet link failure, that an order could be delivered by hand and even then, the order has to be signed and stamped by the transporter. That in the event that an order comes without a stamp, it will have to be verified by phone with the transporter. DW 2 further testified that after receipt of a loading permit from the transporter, a loading p ermit is prepared , counter-checked and approved by the supervisor before it is taken to a senior officer for authorisation. After this , a copy is taken to security and loading Department. Details of the truck and the driver are counter checked before the truck is allowed into the plant to load. (DW3) Patrick Mwamba, a Human Resource Officer told the Court that the Appellant followed the procedure prescribed in the disciplinary code when it dealt with the case of the Respondent. That he (the Respondent) was accu sed of falsifying a company document and asked to exculpate himself, by h is immediate supervisor. The supervisor was not s a tisfied with his exculpatory statement and formally charged him . Investigations were carried ou t which culminated in a disciplinary h earing. At the end of the hearing, the Respondent was found guilty and dismissed from J8 • employment. He a ppealed twice but 1n each case he was unsuccessful. After considering t h e evidence that was b efore him, th e learned trial Judge formula ted the following issues for his determination: - 1. Whether the Respondent was entitled to damages for false i mprisonment and malicious prosecut ion; and 2 . Whether or not the Respondent's dis m issal from employment was wrongful. The learn ed Judge dismissed the claim s for false imprisonment and m a licious prosecu tion. He, however, found that the Respondent's dis missal was wrongful and award ed him 12 months ' salary and allowan ces in form of comp en sation. This finding seems to h ave b een anch or ed solely on the absence of the video footage of the loading of the copper. This piece of evide n ce was not produced during the disciplinary h earings and n either was it availed b efore the lower Court. According to the Judge , it was clear, from the eviden ce b efore him , tha t the s hipping of copper ore from Konkola Coppe r Mines (KCM) premises b egan from the tim e that a truck with the r elevant documentation arrives, and ended when the truck left. The Judge was of the view that the charge J9 • levelled against the Respondent was based on only one stage of the process. This, in the learned Judge's opinion, could not prove the charge against the Responde nt. Consequently, h e h eld that the Respondent's summary dismissal was wrongful. He relied heavily on our decision in the cas e of BANK OF ZAMBIA V JOSEPH KASONDE1 . In that case, the Responde nt , a s in the case in casu, was summarily dismissed bu t in the case of KASONDE; we upheld the lower Court's finding that allega tions of dishonesty had not been proved on the basis that important invoices on which t h e charges were base d were not produced during the disciplinary hearing or before the High Court. The Appellant, who was the losing party in the lower Court has now escalated this matter to this Court, a dvancing five grounds of a ppeal formulated as follows: - 1. That the court below erred and misdirected itself in law and fact when it found as follows- "According to page 21 of the Plaintiff's bundle of documents there is a very important issue raised, that of the video footage. This evidence was not produced during the disciplinary hearings nor was it brought before court. From the evidence before me, it is clear that the shipping of copper ore from Konkola Copper Mines premises beginning (begins) from the time a truck with the r e levant documentation arrives and leaves. The charge was based on only one stage of the process. This in my view cannot prove that the Plaintiff's JlO • charge was proved. In conclusion, I find that his dismissal was wrongful and accordingly awa rd him damages in the sum of 12 months of what he was entitled of his monthly salary and other allowances, being K70,657 .30 as shown at page 9 of the Plaintiff's Bundle of Documents" . 2. That the Court below erred and misdirected itself in law and fact in finding that the fact that there was no video footage means that there was insufficient evidence to prove the charge of uttering and falsifying a document when in fact the charge was proved because the Respondent did not follow the correct procedure when raising a loading permit. 3. That the Court below erred and misdire cted itself in law and fact when it disregarded the evidence on r e cord and proceeded to hold that since the video footage was not produced, the charge was based on only one stage of the process when the evidence on record attests otherwise. 4 . That the Court below erred in law and totally misapprehended the facts before it in holding that the Re spondent was wrongfully dismissed when in fact there was evidence of wrongdoing on his part. In his finding that the video footage should have been produced before him, the Court constitute d itself into a disciplinary body. 5 . That the Court below erred and misdirected itself in law and fact when, contrary to well established principles that disciplinary bodies must not be forced into becoming instrumented in nets of legal procedure so long as they act fairly and justly, their decisions should be supported, it totally usurped the charge of uttering and falsifying a document by the Appellant ' s Disciplinary Committee by demanding that other evidence should have been produced." Wh e n we heard th e appeal on 5 Lh June, 20 18 , the learn ed Counsel for the Appellant relied on t h e h eads of a rgument filed in Jll • .. support of the appeal on 15 th June , 20 15 in which the five grounds of appeal were argued together. Counsel 's argument, in the main , is that contra r y to the trial Court's findings, the c h a rge against th e Resp onden t of uttering and falsifying docume nts was proved. That the charge emanated from the fact the Re spondent prepared and s igned a loading permit from a forged loading schedule purporting that truck registration number ABJ 1214 was genuinely au thorised by Access Freight to uplift copper cathodes from KCM Nkana to Durban. That according to the Appellant's disciplinary code , the offen ce of uttering a nd falsifying a document is described as "deliberately giving untrue, erroneous or misleading information or testimony whether verbally or in writing" . Counsel submitted that the Appe llant followed procedure because the Respondent was given an opportunity to exculpate himself before h e was c harged , and , h e was give n an opportunity to give his s ide of the story during the disciplinary hearing after which he was dismissed summarily. He was a llowed to appeal twice before h e was finally terminated. J12 .. Citing from the learned a uthors of EMPLOYMENT LAW IN ZAMBIA al , Counsel submitted that w h en dealing with wrongful dismissal, the question is n ot wh y bu t how the dis missal was effected. That this concept h as b een wid ely a ccepted to m ean that determina tion is not on the substance but the form. He submitted further that wher e a dismissal is don e according to procedure, no claims for wrongful d ismissal should be enter tained. Further, that where it is clear that an employee h as committed a n offence in an employer/ employee r ela tion s hip or has committed an act or omission which is in breach of the contr act of employment, any dismissal resulting t h er efrom cannot b e h eld to be wr ongful or null and void ab initio. To support his argument, Counsel referred us to the case of NATIONAL BREWERIES LIMITED V PHILIP MWENYA2 , where we held that- "Where an employee has committed an offence for which he can be dismissed, no injustice arises for failure to comply with the procedure stipulated in the contract a nd such an employee has no claim on that ground for wrongful dismissal or a declaration that the dismissal is a nullity" Counsel also invited u s to look a l th e case of CAROLINE TOMAIDA DAKA V ZAMBIA NATIONAL COMMERCIAL BANK3 J13 • which illuminates a m yria d of prjn c iples on wrongful dismissal. According to Counse l, the two important questions which the lower Court ought to have d etermined in r e la ti o n to th e claim for wrongful dismissal wer e :- a. Whether the facts disclosed at trial disclose an offence with which the Respondent was charged; and b . Whether the Appellant's disciplinary committee properly exercised their powers in deciding to dismiss the Respondent and uphold the dismissal. Counsel argued that it was wrong for the Court below to have opined on w h at e vidence ou gh t lo h a ve been produ ced at the disciplina r y h earing, a dding that it w as not the functio n of the trial Court to sit a s an a ppe lla te tribunal to the disciplinary h earing. To support this position , h e cited th e cases of THE ATTORNEY GENERAL V RICHARD JACKSON PHIRI4 and KAMBATIKA V ZESCO LIMITEDs. In the case of THE ATTORNEY GENERAL V RICHARD JACKSON PHIRl4 we h eld that- "The court cannot be required to sit as a court of appeal from the decision of the Public Service Commission to review its proceedings or to inquire whether its decision was fair or r easonable. The court ought to have regard only to the question whether the Public Service Commission had valid disciplinary powers and, if so, whether such powers were validly exercised." In the case of KAMBATIKA V ZESCO LIMITEDs we s tated: - "As we have said in many cases in the past, it is not the function of the Court to interpose itself as a n Appellate Tribunal within Jl4 • domestic disciplinary proce dure s to r eview what others have done. The duty of the Court is to examine if there was necessary disciplinary powers and if this had b ee n exercised in due form. Where natural justice is expected, the Court examines if this was satisfied. Of course, the Court will also be concerned to see that the disciplinary procedures were properly invoked that is to say that there was in fact a sufficie nt substratum of fact to support their invocation since otherwise, the exe rcise of disciplinary powers will be regarded as bad." According to Counsel, the Court b elow constituted itself as a court of appeal from the disciplinary committee when it should have concerned itself with the four e lements th at were laid down in the KAMBATIKA5 cas e; that is, the juris dic tion or powers of the App ellant's disciplinary committee; secondly, the exercise of those powers in due form ; thirdly, fulfilm ent of natural justice; and lastly, su fficient substratum of facts to warrant lhe invocation of the d isciplinary committee's jurisdiction. He stated tha t in this case, the Appellant's Disciplin a r y Code requires that the imm ediate su pervisor should first investigate the matter and then charge the employee; that if charged , the e mployee should be asked to reply to the charge, and, thereafter , the case is further investigated before an employee is subjecte d to a case h earing . If found guilty, the employee is allowed two appeals. Counsel submitted that in this case, the Appellant satisfie d a ll these elem ents and did not breach Jl S the contract of employm e nt. He con c luded by urging us to uphold the app eal and reverse the learned Judge 's finding of fact. The Respondent fil ed writte n h ead s of a rgume n t in which he also argued the ground s of appeal togethe r . He a u gm ented t h e heads of argument with oral submission s. He submitted that the Court below was on firm ground wh e n it fou n d that he was wrongfully dismissed on the ground tha t p e rtinent evidence, in form of the video footage, was n either produced at the disciplinary h earing nor before the Court. He referred us to a portion of the judgment on p age 17 of the record of appeal in which the Judge said: - "The charge was based on only one stage of the process. This, in my view, cannot prove that the Plaintiff's c h a r ge wa s proved. " He argued that while a court must look at th e form rather than substance when d ealing with m atters of wrongful dismissal , it is not precluded from looking a t s ubs tance wh en it is brought to its attention that some pertine nt evide n ce was not availed to the disciplinary hearing or th e Court fo r purposes of finding a fact. For this submission, the Respondent a lso referred u s to the case of Jl6 ATTORNEY-GENERAL V JACKSON PHIRI4 , a nd in particular, our h olding t h at:- "Once the correct procedure has been followed, the only question which can arise for the consideration of the Court based on the facts of the case, would be whether there were in fact, facts established to support the disciplinary measures since any exercise of powers will be regarded as bad if there is no substratum of facts to support the same. To buttress his p oint furth e r , the Resp onden t also cited the case of SAMSON KALENDE AND CROSBY BERNAND 10 , a High Court d ecision , in which the lear n ed Judge h eld that " ... any exercise of power will be regarded as bad if there is no substratum of fact to support it." H e contende d that the vid eo footage was c ardinal evide n ce and without it, th e App ellant h ad no basis to institute a d isciplinary hearing . Th a t th e Court below acted within the ambit of the law when it foun d itself bound by the decision in th e case of BANK OF ZAMBIA V KASONDE 1 . He urged us to dismiss the a ppeal as it lack s meri t. In his oral arguments, the Responden t echoed his position that the charge th at h e was fac ing could n ot be proved withou t th e CCTV footage being availe d to the Cou rt . H e la m ented that the compensation which was awa rded to him by the lower Court was not enough but h e was rem inded by the Court th at h e had not J17 cross a ppealed against the judg1nent of th e Court b elow. He, however, conced e d tha t he was involved , together with two others, in the prepara tion of th e documents from which t h e loading permit was generated. That they were all suspended but h is colleagues were later r einstated. We h ave considered and given thou ght to the evidence on record, the arguments b y th e parties and the Judgment a ppealed against. Like the p a r ties b efore us , we shall a lso deal with all the grounds of appeal together. Arising from th e said grounds of appeal and the submission s of t h e parties, the main issue t h at we have formulated for our determination is wh ether the le arned trial Judge was correct to find that the Respond en t was wron gfully dismissed on the basis t hat the video footage of the loading of the truck was not produced before the d iscip linary h earings a nd th e trial Court; and to hold , consequ ently, th at the charges levelled against the Respondent were not proved. The gravamen of t he Appellant's a rgument b efore u s is that the Respondent was properly charged for fa iling to follow procedure when he issued th e loa ding p ermit in issue on a fo rged loa ding order. That the c h a rge was proved a nd the disciplinary procedure J18 • ' was followed and h e n ce the Respondent h as no claim against his summary dis missal. The Responden t , on the other h and, has argued that, lack of the video footage s howing the loading of the truck in question could have provided the necessary substratum of facts to support the dismissal. It is trite that in proceedings for wrongful termination of employment, the role of t h e court is to determine w h ether the correct procedure was followed wh en dis miss ing a n employee and where applicab le , whether th e disciplina ry committee h a d valid disciplinary power s. Th e Court m ay a lso h ave to consider whether there is a subs tratum of facts to support the disciplinary measures. This position, whic h we esp oused in the cas e of THE ATTORNEY GENERAL V RICHARD JACKSON PHIRl4 , a nd has b een cited to us Counsel for the Appella nt a nd th e Resp ondent, is still good la w . In the case in casu, the re a ppear s to be no conte ntion on the procedure adopted to dismiss the Resp onde nt; a nd , whether the Appellant's d isciplinary b ody h ad valid powe rs to dismiss . The contention, it would app ear , is on whether there was a substratum of facts to support the disciplinary m easures. J1 9 A perusal of the record shows that the Respondent was charged with uttering and falsifying a document under clause 2.4.6 of the disciplinary code. Counsel for the Appellant gave us the definition of uttering and falsifying of documents as provided for in t h e Appellant's disciplinary code and grievance procedure. We note, however, that the disciplinary code was not on record. According to BLACK'S LAW DICTIONARY, falsifying a record means ''the crime of making false entries or otherwise tampering with a public record with intent to deceive or injure or to conceal wrongdoing". Uttering means "the crime of presenting a false or worthless instrument with intent to harm or defraud". We note , from the record , that when the Respondent was charged, h e exculpated himself by letter, in which h e basically did not deny the charge that h e prepared and signed the loading perm it in issue. During his case hearing and while pursuing his appeals however, the Respondent gave contradictory statements. He contradicted himself as to who gave him the loading order and on the steps that he took to verify the origin of the order. This is evident from the Respondent's exculpatory letter dated 2°d September, 2010, appearing on page 51 of the record of appeal. He J20 ... indicated in that letter t h at the loa ding order was given to him on instructions from Mr. Dona ld Simbeye, a workmate. However, in his letter of 4 th October, 20 10 to the Human Resource Manager (appearing on page 55 of the record of appeal) appealing against the d ismissal, he said that: - "I was made aware about the loading order by Bridge Shipping Transporter guys whom I found in the office and said to me that the other guy by the (name) of Kanyifwa left it as there was no one." On the steps that the Respondent took to verify the loading order , there are also s ome discrepancies between the documents . For example, his statement during investigations was that- "I wanted to ring Kanyifwa Mvula to confirm if it was him who had sent the order, but my phone was left at home. I did not inform Mr John Kaongolo about the specific order for truck No ABJ 1214." But in the letter of 28th October 2010, relating to t h e second appeal the Respondent stated, inter alia that- "I tried to call Kanyifwa from my office but there was no air time ... While in the office I briefed him (Mr. Kaongola) on the general status and again tried to call Kanyifwa from Mr. Kaongola's office since his phone had air time but Mr. Kanyifwa's phone was off." Going by the evidence of DW2, however, it is evident that, the Respondent did not follow procedure when he went ahead to prepare the loading permit for an order, which according to him, h e just found lyin g on his desk, without verifyin g with Access Freight, J21 • the transporter. The procedure for preparing th e loading p ermit as outlined b y DW2 was that the loading orders are received through email and it is only in rare circumstan ces that an order can be delivered by hand. Tha t even then, the transporter has to verify by signing and stamping t h e order. It is clear that the Respondent did n ot comply with the procedure when h e prepared the loading permit without verification. The Respondent's excuse of being new in the d epartment did not h old water because according to the testimony of DW2 , orientation was conducted when staff were moved from one d epartment to a nother. Having prepared and s igned the loading permit from a forged loading schedule, the Respondent was charged and he app eared before the disciplinary committee on 30th September, 2 010. After the hearing, h e was summarily dis missed and given the right to appeal within two days which h e did. His appeal was rejected on 26 th October, 2010 on account that h e did not provide any grounds to substantiate the app eal other than s tate that he was innocent. The Respondent m a d e a final appeal on 2 nd November, 2 010 which was also r ejected. He was finally te rminated on 3 Qth December, 2 010. J22 • From t h e fo regoing, we agree with Cou nse l for the Appellant that the Company followed disciplinary p r ocedure in the Respondent's case . Further, a lthough the disciplinary c ode was not on record, we are satisfied th a t Appe llant's disciplinary body had valid powers to act, and that they exercised those powers validly while observing the rules of natura l justice. On the argument tha t the learned trial Judge erred when he found that the c harge against the Appella nt was not proved because of the a b sen ce of a video footage s h owing the loading of the c oppe r, we are of the view that the evidence of the video footage did not go to the root of the m a tter. According to th e evidence of OW 1 (the police officer) the video footage would h ave capture d the whole loading process, including the r egistration of the truck and the identity of the driver. This was confirmed by the Respondent who s tated that the d e tails of the truck a nd the identity of the driver are captured b y close circuit cameras. It is not in dispute that a truck load of copper was stolen on the strength of documents which were prepared by th e Re spondent. The documents were used to loa d the cargo on to the truck. The case brought against the Responde nt was that h e started the J23 n ' process that led to th e the ft of copper cath odes by ra1s1ng the loadin g p e rmit using a forged order. Furth er that h e faile d to d isclose wher e h e got the fi c titious order and th at th e p eople from wh om h e alleged to h ave go tten the order den ied h is assertion . The r epor t of the d isciplina r y a p p eal hearing h e ld on 26th Octob e r , 2 01 0 a p pearing on page 122 of t h e record of a p p eal states:- "The Chairman told the appellant that as much as he was new in the section he was the one found w ith a forged order. He said the forged order was actually the beginning of the process of the missing copper. H e said that it was unfortunate that he failed to trace the origins of the forged orde r. As such, it was very difficult for management to believe that he was inn ocent." In addition , the investigation report s ubmitted b y Ro bby Mumba, Assistant Group Ma nager (Intelligence and Investigation s) appearing at page 94 of th e r ecord of appe al found that:- " After loading permit no. 28681 had been signed by all the signatories, three copie s of the p e rmit were given to security, loading sche dule order number 314 being without the forge d attached, and on the basis of this docume nt the truck was allowed to proceed for loa ding in the pla nt .. . " The events r eferred to in t h ese excerpts cou ld n ot have b een captured on CCTV as the CCTV was only restricted to the loading area. It cannot, therefore, b e seriously argued that th e m e r e showing of the loadin g p r ocess, th e registration numb e r s o f th e truck and the trailer, and the ide ntity of the driver would e r ode J24 ... evidence gath e re d fro m the d ocume nts a nd case h earings which were outside the reach of the CCTV cam e r as. From the fore going, it is our considered view that the learned Judge misdirected himself when he premised his decision that the Respondent was wrongfully dismissed solely on the absence of the CCTV footage , as such footage would not have captured the preparation of the documents on the basis of which the truck was loaded. There was enough evidence from t h e documents on record to support the institution of disciplinary proceedings against the Respondent. Furthe r , by ins is ting on th e video footage, the trial Judge shifted the burden of proof of the case from t he Respondent to the Appellant. It was incumbent upon the Respondent, as the Plaintiff in the Court below, to produce the video footage or compel the Appellant through an a ppropriate application, to produce the footage if he was of the view that it was critical to his case. There is nothing on record to show that any a tte mpt was m ade to source the video footage. We pronounced in the case of CHIMANGA CHANGA V STEPHEN CHIPANGO NGOMBE6 that- J25 "An employer doe s not have to prove that an offence took place or satisfy himself beyond rea sonable doubt that the employee committed the act in question. His function is to act reasonably in coming to a decision." Thus, in an employer/ employee re la tionship , the onus of p roving t h at the employee was wrongfully te rmina ted lies on the employee. Th e bur d en does not s h ift to the e mploye r . This is aptly stated in th e case of WILSON MASAUSO ZULU V AVONDALE HOUSING PROJECT LIMITED8 whe re we said: - "Where a plaintiff alleges that he has been wrongfully or unfairly dismissed, as any other case where he makes an allegation, it is generally for him to prove those alle gations. A plaintiff who has failed to prove his case cannot b e e ntitle d to judgment, whatever may be said of the opponent' s case." As we h a ve stated above, the video footage in this case would not have been helpful to the Resp ondent's case. Other th an capturing the loading of the truck , its registration number and the face of the driver, it is not plausib le that t h e close c ircuit camer a s would have b een a ble to d etect the activities that le d to th e forgery and th e preparation of the docu m e nts on the b asis of w hich t h e loading permit w as prepared. Another aspect th a t the learned Counsel fo r the App ellant h as r aised is th at the lower Court constituted itself as an a ppellate tribu n al to th e Appellant's discip linary bod y and usu rped it powers J26 : • by de manding produ c tion of more evidence. We have stated earlier in this judg m ent that when dealing with cases of wrongful termination of employm ent, the role of the court is to dete rmine whether the correct procedure was followed wh en dismissing the e mployee; whe the r the disciplinary committee h ad valid d iscip linary powers and where the iss u e a rises, wheth er there is a substratu m of facts to support the ins titution of disciplinary proceedings. The Judge stated on page 1 7 of th e r ecord of ap peal that " .... there is a very important issue raised that of the video footage. This evidence was not produced at the d isciplinary hearings nor was it brought before this Court ... This in my view cannot prove that the Plaintiff's charge was proved. By insinu ating that the disciplinary Committee need ed to h ave h ad t h e video footage in order to prove the c harges against th e Responde n t, the Court went b eyond the principles t h at we have enuncia ted a plethora of cases including th at of THE ATTORNEY GENERAL V RICHARD JACKSON PHIRl4 , where we a lso h eld in that it was not th e fu nction of th e Court to s it as a n appellate tribunal for the d iscip linary committee. J27 I , ~ t The C ourt be low h oweve r , h eavily relied on the case of BANK OF ZAMBIA V JOSEPH KASONDE 1 to overturn th e Respondent's summary dismissal. We stated that in the case of KASONDE 1 that " ... important invoices were not produced in the disciplinary hearing or in the High Court. The allegation of dishonest conduct was not proven and the dismissal was therefore wrongful." The d ecision in the case of KASONDE1 c an be distinguished from the case in casu . In that case, the lowe r Court's findings that allegation s of dishonesty levelled again st the Plaintiff were n o t proved , were n ot c h a lle n ged on appeal. We found that particulars and d etails of th e offen ce to e nable the Plaintiff to defend himself agains t th e charges were not availed to him. We stated: - "Even the charge of dishonest conduct lacks particulars and details to enable him to defend himself. It does not give the date(s) of the misconduct and what the misconduct was. It is alleged that investigations revealed that the Plaintiff fraudulently raised false invoices purporting to have paid for petrol for Bank of Zambia vehicles. What are those invoices? Details such as dates, invoice numbers and the amount involved are not given ... i t seems it was a fishing expedition by the d efe ndant .. . the disciplinary code was not followed ; it was a straight forward wrongful dismissal." Thus, the whole c harge of dis honesty again s t the Appellant in the case of KASONDE1 rested on the invoices. Clearly, there was no J28 r ( , I • substratum of fac ts to s uppo rt the d is c iplina r y c h a rges and t h e disciplinary code was not followed. The same cannot be said about the Respondent in this case. The Responde nt knew exactly what case he had to meet. The Appe llant followed the disciplinary procedure in dismissing him from employment. The Court below was in a position to assess whether the Respondent was treated fairly and whether , on the whole, there was a substratum of facts to support the c harges. By insisting that the CCTV footage ought to have been produced before the disciplinary h earing , the Judge strayed into the substantive issu es before the disciplinary committee thus clothing the Court with appellate s tatus . Arising from what we h ave said above, th e finding by the trial Judge , that the cha rge levelled against the Resp o nde n t was based 'on only one stage of the process' due to lack of the video footage cannot b e upheld . The s hipping of the coppe r was done on the strength of a loading order which was supported b y a forged document. The Responde nt was implicated in t h e procurement of that order. By the t ime tha t the copper was being loaded, the offence had already been committed. The video footage, as we have stated above would not h ave changed a n ything. The learned J29 Judge's finding was th e refore perverse a nd no t s uppo rted by th e evidence on record. On the totality of th e eviden ce on record, we find that there is merit in this appeal. It is a llowed. We nullify and set aside the decision by the Court below that the Respondent was wrongfully dismisse d . It follows that the award of 12 months ' salary and allowances that the Res ponde nt was awarded as compensation for loss of e mployment fa lls away. The Appellant shall have its costs b oth in this Court and in the Court below to be taxed in default of agreement. i :- , . ' \ , LC. Mambilima CHIEF JUSTICE ~ -- · - .-- M. S~~~~a - k-1' , ~ . /, DEPUTY CHIEF JUSTICE 130