Louis Chanda v Kabwe Milling (1978) Ltd (Appeal 163 of 1999) [2000] ZMSC 130 (30 August 2000)

IN THE SUPREME COURT FOR ZAMBIA APPEAL NO. 163/99 HOLDEN AT KABWE (CIVIL JURISDICTION) BETWEEN: LOUIS CHANDA APPELLANT AND KABWE MILLING (1978) LTD. RESPONDENT Coram: Ngulube,CJ, Muzyamba, Lewanika,JJS. On 10th August, 2000 and at Lusaka on 30*h August, 2000. For the Appellant: F. Kongwa of Kongwa & Co. For the Respondent: B. K. Chishimba & Co. __ ________ Lewanika. JS. delivered the judgment of the Court. JUDGMENT _________ ______ When we heard this appeal on 10th August, 2000, we dismissed the appeal and discharged the interim injunction granted to the appellant and allowed the appellant to remain in the company house for a further three months and said that we would give our reasons later and we now do so. The evidence on record is that the appellant was initially employed by the respondent as a motor mechanic in August, 1988. His conditions of service were those enshrined in a collective agreement entered into by the appellant's union and the respondent. He rose in the ranks and on 12th October, 1994 he was promoted to the position of Garage Foreman and his conditions of service changed to those that were applicable to non represented staff. On 17th October, 1996, the respondent wrote a letter to the -J2- appellant charging him with inefficiency and poor job performance and giving him 48 hours to show cause why disciplinary action should not be taken against him. The appellant wrote an exculpatory letter on 19lh October, 1996 and on 7th November, 1996 a Disciplinary Committee Meeting was held and on the 14th November, 1996 the appellant was written a letter of dismissal. The appellant appealed against the dismissal by letter dated 15lh November, 1996 but the appeal was not successful. The appellant then instituted proceedings claiming inter alia for: 1. 2. A declaration that his dismissal was unlawful. Damages for wrongful dismissal. The learned trial Judge upon a consideration of the evidence adduced before him found that the appellant's dismissal was justified and dismissed his claims, hence this appeal. Counsel who appealed for the appellant filed four grounds of appeal, namely: i. That the court erred in holding that the contract of employment was purely a matter of master and servant relationship. ii. That the learned trial Judge erred in fact in holding that there was no evidence from both the plaintiff and defendant that procedural requirements before taking disciplinary action were statutory. iii. That the learned trial Judge erred in holding that on the facts the respondent was justified in dismissing summarily without notice the appellant on the grounds of competence in that skill. iv. That the learned trial Judge having characterised the case as one of summary dismissal erred in failing to make a finding of fact that the reasons for the dismissal were justified. We shall deal with the first and second grounds of appeal together as they are based on the premise that the appellant's conditions of service at the time of his dismissal were those contained in the collective agreement entered into by the respondent and the National Union of Commercial and Industrial Workers. We have already pointed out that the evidence on record is that by letter dated 12th October, 1994 the appellant was promoted to the position of Garage Foreman and the said letter specifically states that the conditions of service applicable to the appellant were to be those of non represented staff. Therefore at the time of his dismissal the collective agreement was not applicable to the appellant and this appeal could not succeed on grounds one and two. We shall also deal with the third and fourth ground together. In arriving at his decision the learned trial Judge took into account the fact that the appellant was put on a charge which explained in detail -J4- what was alleged against him, was given the opportunity to exculpate himself and appeared before a disciplinary committee, and found that the appellant was treated fairly. The arguments advanced by Counsel for the appellant suggest that the learned trial Judge should have gone into the sufficiency of the grounds given for the appellant's dismissal. But that is not the law, the function of the trial court was limited to determining whether or not the respondent acted fairly and justly in arriving at its decision, it was not part of its function to rehear the proceedings of the disciplinary body or to act as an appellate court from those proceedings. This appeal could also not succeed on grounds three and four. It was for those reasons that we dismissed the appeal but having regard to the circumstances of the case and the parties herein, we make no order as to costs. M. M. S. W. NGULUBE CHIEF JUSTICE W. M. MUZYAMBA SUPREME COURT JUDGE D. M. LEWANIKA SUPREME COURT JUDGE