Lovemore Gumbo v Standard Chartered Bank (IRC/ND/11/2020) [2022] ZMHC 74 (16 December 2022)

IN THE HIGH COURT FOR ZAMBIA HOLDEN AT NDOLA (Industrial Relations Division) IRC/ND/11/2020 BETWEEN : LOVEMORE GUMBO AND , ; \ ,,,-_-,.__-0 --~ r ) ~,,, n ':'.\ . ~~,0'· ---- .~ . _,.. .• ,, 7- --- --g-· f'.\ COMPLAINANT STANDARD CHARTERE RESPONDENT Before the Hon . Mr. Justice Davies C. Mumba in chambers on the 16 th day of December, 2022. For the Complainant: For the Respondent: Mr. V. N. Michela, Messrs V. N. Michela & Advocates. Mr. K. Wishimanga, Messrs AMW & Company. JUDGMENT Cases ref erred to: 1. Chilanga Cement v Venus Kasi to, Appeal No. 86 of 2015. 2. Grayson Kachikoti v TAP Bulding Products Limied, Comp. No . 33 of 1982. 3. Edward Mweshi Chile she v Zambia Consolidated Copper Mines (1996) S. J. (S. C.) Leg islation ref erred to: 1. The Industrial and Labour Relations Act Chapter 269 of the Laws of Zambia. 2. The Employment Code Act No . 3 of 20 19. Other works referred to: 1. W. S Mwenda, Employment Law in Zambia: Cases and Materials: UNZA Press, Lusaka, 2004. on 4 t h F bru again t t J2 2. Winnie Sithol Mw nda nd in 7. n1 to Employ1n nt L ic : U 7./\ Pr , s. J.u hun g u : A omprehensive Guide ka, 2021 By notice of 11pl int p rt d y - n ffid vH fH d into Court ti 1 nt mm n d hi action app li d f l t m ndth notoi of nt . On 1 H pt mb , 2020 , th mp lainant ompla ·n and to file a fu he f id it . B onsent of the partie s, the complainan 's app lication as granted by the Court on 9 th October , 2020 and , therefore , th e complainant filed into Court an amended notice of complaint on 15 th October, 2020. The complainant is seeking the following reliefs: 1. A dec laration that he was discriminated against by virtue of his j ob as Branch Manager as his subordinates facing similar charges like his were given a penalty of final warning le er valid for 12 months as against his dismissal when th a 1 served under the same Disciplinary code . 2. A declaration that he was wrongfully and unfairl di m1 3. An order for damages for wrongful dis mi s 1. 4 . In the alternative a declaration that h b d m d t ha e retired und r voluntary p ration . 5. Further alternativ ly , that h b r in t t d t hi po ition. 6. Intere st on th amount f und du . 7. An order that h b d m d to ha parated with the respondent under th voluntary paration scheme. 8. Legal Costs. J. J In his affidavit in support, the complainant deposed that he joined the respondent company on 22 nd February, 1993 as a Bank Clerk and rose through th ranks, th last appointment being that of Branch Man ag r , Kitw bran h. Th a t h e was dismissed by the respondent on 22 nd Nov mb er, 2019 on the charges of abuse of authority; d ishones t conduc t; fraud/emb e zzlement ; and fals ific a tion of s taff imprest claims . He deposed that he was charged together with his subordinates namely: Sheila Zulu , Teller; Makaz o Mundia, Teller; Reuben Chilufya, Teller; Lucy Chile she, Teller; and Mirriam Mbao, Branch Operations Manager. That he had challenges in getting the charge letters and final decision letters from his subordinates on their disciplinary ac tion b ecause they feared being victimised by the respondent. That he only managed to get part of the final decision on the disciplinary action taken from one of his subordinates exhibited as "LG6 ". That the charges that he faced were similar to the charges his subordinates faced as disclosed in paragraph 9 of the affidavit in support of the notice of complaint. That the background to the charges he and his subordinates faced arose from similar transactions and facts namely payment of dinner allowanc e for working beyond 19.30 hours. That dinner allowance accrued when one worked beyond 19.30 hours . That during investigat" ons it was discovered that dinner allowance was paid to his subordin tes d spite not working beyond 19.30 hours. That the approval of the dinner allowances in the system was done by the Branch Operations Manager after her J4 subordinates filled in th claim forms. That the beneficiaries of the money were hi ubordinat and that he did not get anything from th id 1non y and th is ue of embezzlement did not ari That h wa th only one dismi sed whilst his subordinates wer given final warning letters. That the complainant felt that he was unfairly treated and discriminated against by irtue of his job as Branch Manager in that his subordinates facing similar charges arising out of the same transactions or facts were given final warning letters. That he felt that he was unfairly treated and discriminated against by virtu e of h is j ob as Branch Manager in that his subordinates facing similar charges arising out of the same transactions or facts were given final warning letter whilst he alone was dismissed . That he had earlier on applied for voluntary separation but the respondent being malicious decided to dismiss him so as t o save money when he ought to have been treated like his subordinates b y being given a similar penalty of final warning. That he was praying for a declaration that he was discriminated against by virtue of his job as Branch Manager; and that he was wrongfully and unfairly dismissed. That he was claiming for damages for wrongful di s missal and in the alternative, to be deemed to ha e retired under voluntary s paration . In hi s further affidavit in upport of th noti of omplaint filed into Court on 15 th O tob r, 20 20, th ompl inan t averred that there was an on-gain Vo luntary v ranee cheme (VSS) at the respondent co1np n h r b th o . illing o parate with the JS in it d t m k pp li tio n . That he respondn nt submitt d hi v l un ry ry verance v ranee sch 111 . Th 111 1 in n t pro u h V I n che111 li nd uidan , ' L 2' . On 1 th F bru r , 0 1, th r pond n t fi led into our an an1ended an r and an affidavit in support of the said amended an wer, worn b one Mutinta Mbonga Habulembe , Employee Relation pecialist in the respondent company. In the affid avi t , the deponent averred that the complainant was , among others , subject to the respondent ' s Group code of conduct, 'MMH l ' , the Fair Accountability Treatment Processes and Proc edures (FADP), 'MMH2'; and the Collective Bargaining Agreement (CBA), 'MMH3 '. That it was not true that the complainant was charged with his subordinates name ly Sheila Zulu , Telle r ; Makazo Mundia, Teller; Reuben Chilufya , Teller ; Lucy Chiles he , Teller; and Miriam Mbao, Banch Operation Manager. It was averred that while the respondent admitted the contents of paragrapghs 9 to 13 of the complainant ' affi d it in support , th e complainant and his subordinat wer indi idu 11 ac cou n table a nd charg d a s su h . h t th ompl in nt , in tr ing to "manage" a s ituation pro po d th t hi ubordin t m ke a claim for dinn e r allowan v n wh n th y did not work passed the time allowed for th m to mak u h l im . h t in breach of J6 his duty to the respondent, the complainant approved the payment of the dinner allowance knowing very well that none of the employees were entitled to the said dinner allowance; and that the payment of the said dinner allowance (to which there was no entitle1nent) to the said employees resulted in the respondent suffering a loss of funds. That the complainant was a very senior member of the respondent company and failed to lead by example of complying with the contract of employment and other policies applicable to him and the other employees. That the complainant's dismissal was additionally premised on the establishment of the fact that it was in fact the complainant that approved the claims for the dinner allowance under the circumstances. That during investigations into the matter , the subordinate employees confirmed that the complainant approved the dinner allowance as per exhibit, "MMH4". That in any case , the complainant in fact readily admitted having initiated the idea of paying a dinner allowance when the same was not due. That contrary to his belief that he was discriminated against due to his job as Branch Manager, the respondent's position was that there was nothing improper with a senior member of staff being punished more severe ly than others. It was averred that the complainant had breached his duties and/or obligations as indicated in paragraph 12 of the affidavit in support of the amended answer. J7 That in breach of his employment contract and the respondent policies and procedures as afar said, the complainant failed to discharge and perforn1 hi duti and/or obligations. That in complying with its policies and procedures, the respondent did on the 30 th day of September, 2019, issue a show cause letter to the con1plainant in order to accord him a chance to explain why disciplinary action could not be taken against him as per exhibit, "MMHS ". That on the pt day of October, 2019, the complainant responded to the aforesaid letter in which he admitted to having acted in breach of the contract and further asked the respondent for leniency as it deliberated upon his case as per the exhibit , "MMH6 ". That following the complainant's admission of his guilt , the respondent proceeded to issue the complainant with a notification for the disciplinary meeting, 'MMH7'; and the charge sheet dated 8 th October, 2019. That the complainant was charged with the offences of abuse of authority under clause 1.3.k.; dishonest conduct under clause 1.4.f.; fraud, embezzlement under clause 1.4.1; and falsification of staff imprest claims under clause 1. Sd of the Fair Accountability Treatment Processes and Procedures (2016), exhibit ''MMH2". The deponent averred that subsequently, a disciplinary hearing was constituted in accordance with the respondent's policies and procedures . That the said disciplinary hearing was convened on 14 th October, 2019 as shown by th minutes of the disciplinary hearing, exhibit, "MMH8". That following the conclusion of the J8 hearing and by the letter dated 22 nd November, 2019, the complainant was notified that having been found guilty, he was summarily dismissed as shown by exhibit, "MMH9". That the complainant appealed against the respondent's decision by his letter dated 25 th Nove1nber, 2019, exhibit, "MMHl0". That subsequently, an appeal hearing was held on 3r d December, 2019 and the appeal tribunal upheld the decision of the respondent to summarily dismiss the complainant as per exhibit, "MMH 11 ". It was deposed that the respondent followed the correct disciplinary procedure and rules in handling the complainant's case without any prejudice or compromise; and that in dealing with the complainant's case, there was no intention of treating him unfavourably and/or discriminating against him on grounds of the position that was held by him as Branch Manager. That the complainant was dismissed because he failed to abide by the respondent' s policies and procedures given his level of responsibility. That the complainant was the most senior employee of all other employees charged by virtue of which he had a higher responsibility which the tribunal took into account. That the punishment meted out against the complainant was commensurate to the offences committed by him and the respondent had the power to punish him as it did. With regard to the issue of voluntary separation, it was averred that the complainant applied to go on voluntary separation on J9 the 16 th November , 2019 aft r h was already charged by the respondent for br a h of hi 1nploym nt ontract as evidenced by his application l tt r , "MMHl 2". That the contents of paragraph 7 of th furth r ffidavit w r d nied as the respond ent did not di riminat against the omplainant. That furthern1ore , th voluntary separation scheme was being administered by a body completely separate from the one that detern1ined the complainant's disciplinary action . That in any case , there was a set criteria for the award of the voluntary separation which the complainant would have had to satisfy had he continued in employment. That the approval of the voluntary separation was, therefore, not automatic as alleged by the complainant. That, in the premise, all of the complainant 's allegations were false. That the respondent had the relevant disciplinary powers and exercised the same properly. That the complaint lacked merit and, therefore, the complainant was not entitled to any of the reliefs sought. At the trial, the complainant testified that in 2019, he used to work for the respondent as Branch Manager at Zambia Wa branch in Kitwe . That he had worked for the bank for 26 ears until he was dismissed on 22 nd Nov mber , 2019 . H t tified that he was dismissed on four charges a ontain d in th notificatio n of summary dismis al 1 tter, "L " h t th h rg were abuse of authority, contrary to clau 1. .k; di honest conduct, contrary to clause 1.4.f; fraud, embezzlement, contrary to clause no 1.4.i; and falsification of staff imprest forms, contrary to clause 1. 5 .d. of the Fair Accountability Treatment Processes and Procedures (2016) handbook. He explained that the nun1ber of Tellers was reduced from 5 to 3 when he took over office because the model of the bank had changed due to digitalisation. That because most of the clients were not yet conversant with digitalisation, pressure mounted in terms of traffic of clients in the branch. That due to the said pressure , the Teller Services Manager, Petwe Chimpusa approached him on how they were going to motivate the Tellers who were so much under pressure as out of the three Tellers , one got sick and he remained with two Tellers. That Petwe suggested to him that since the Tellers used to knock off around 19 .00 hours a n d that their dinner allowance used to be due at 19 .30 hours , they could ignore the 30 minutes and allow them to claim d inner allowances. That before he could authorise, he called for a meeting where everyone could brainstorm the idea. At that meeting , t he participants were Petwe Chimpusa and five Tellers namely: Sheila Zulu, Reuben Chilufya, Lucy Chileshe and two others. After discussion s , it was resolved that they should be paying the Tellers dinner allowances at the rate of Kl00.00 per member of staff for the period March to April, 2019. That the complainant went on leave in mid -June, 2019. That his immediat e boss, Maximillian Matongo called him and informed him that there was going to be a voluntary severance scheme Jll (VSS) for employees who want d to J ave the respondent and he asked him if h w int r t d in the cheme. That the complainant told Mr. M t n o th t h w nt d to go on voluntary separation. That h n M n g 1n nt 1 rnt about the payment of dinner allo anc in tig tions were instituted . After the aid 111 e tigation , the complainant was charged with the subject offence together with all those who were involved in implementing the same, that is, Sheila Zulu , Mirriam Mbao , Petwe Chimpusa, Reub en Chilufya, and Lucy Chileshe. The witne ss testified that his colleagues, who included the Branch Operations Manager, were all slapped with the offences of fraud , embezzlement, falsification of staff imprest claims, dishonest conduct, and failure to report any irregularity or an offence relating to a financial loss. In reference to the letter of his summary dismiss 1, LG 5 ', the complainant testified that the difference b tw en hi ch rges and those of others was that the oth r w r not h r d with the offenc e of abus of authority nd th ff nc of failure to report any irr gul rity or off n r latin t finan ial loss. That the others wer ju t iv n th n ti n of fina l warning letter except for Mr. Petw himpu a who r signed before the case could be concluded. That th e penalty for dishonest conduct was J12 summary dismissal. That his subordinates were also charged with the offence of dishonest conduct. That the penalty for the offence of fraud, e1nb zz l 1n nt wa ummary dismissal. That his subordinates w r l o har d with the ame offence. That the offence of fal ifi ation of staff imprest claim which he faced together with his subordinates also attracted the penalty of summary dismissal. That the offence of abuse of authority attracted first warning and demotion for the first offender, and summary dismissal for the second off ender. He complained that he was discriminated against by virtue of being the Branch Manager because whereas he was dismissed , his subordinates who were charged with similar offences were given fi nal written warnings and retained in employment. He testified that the charges they all faced were dismissible but his dismissal was maliciously done to deny him the VSS package. Under cross-examination, the complainant stated that the employees for whom he had approved the dinner allowances were entitled to the allowance but that the same was supposed to be claimed at 19 . 30 hours . That instead of telling him to approve transport allowance which was due at 19 .00 hours, the Teller Services Manager told him to approve dinner allowances. That the Tellers were not entitl d to r ceiv dinn r allowances at 19.00 hours but transport allowanc . h t when he was charged with the subject offences, he adn1itt d liability. When referred to J13 exhibit "MMH6" in the affidavit 111 support of the amended answer, the con1plainant confirn1ed that he had admitted all the four charges becaus e it was an admini trative error as they were managing the situation. He confirmed that b ecause of his error, the bank lost out on some money. That according to the disciplinar code , the offence of abu se of authority warranted the penalty of a final warning letter whilst the penalty for the other three offences was summary dismissal. He denied having admitted that the respondent had the right to dismiss him just because he admitted liability on all the charges but when pressed , the complainant admitted that the respondent could summarily dismiss him because of his admission of liability on all charges. He confirmed that he was the most senior of all the employees that were charged. That he was, therefore, required to set the tone for his subordinates and lead by example. He stated that he had the authority to pay dinner allowances before 19.30 hours because he had sought prior authorisation from his immediate boss, Mr. Matongo before they could make any payment. That his boss gave him verbal authority to pay the dinner allowances. When referred to the minutes of the meeting, exhibit 'MMH4f' between the complainant and the investigators, the complainant confirmed that Mr. Matongo was not aware of the dinner allowance claims; and that according to the minutes, Mr. Matongo did not give him any authority. After being referred to various J14 minutes, exhibits 'MH4a', 'MMH4b', 'MMH4c', 'MMH4d', 'MMH4e', and 'MMH4f'; the con1plainant denied any mention of a meeting in the minutes. He stated that he wa s not aware that according to the said minutes , all th employees that attended the meeting pointed to him as the person that approved the payment of the dinner allowances. He stated that Mr . Matongo called him over the issue of VSS but he had no proof of their conversation. The complainant confirmed that he had only applied for the VSS on 16 th November , 2019 because that was when it was floated. That there was no VSS before 16 th November, 2019. He confirmed that he was charged together with his subordinates and he had one copy of their charge sheet, 'LG6'. That it was a fina l warning letter which was addressed to one of his subordinates who had removed the names from the letter because they were still in employment and they feared being victimised. The complainant affirmed that the letter 'LG6 ' had no name of the addressee but insisted that the name could be confirmed with the Human Resource department as this was a specific case . He conceded that the letter did not show that it was from the respondent because it did not bear its name. In reference to exh.bit 'MMH2', the complainant stated that cases were looked at d ifferently depending on the gravity of each case. That the bank had th e m nda te to dec ide on what penalty it could mete out. Th at t he sch dul of offences was not exhaustive as to the penalties the re pond nt could mete out as it did in this Jl S case. With ref r nc to xhibit 'MMH 1 ', the witness confirmed that the VSS wa op n a from 15 1 1t to 25 111 November, 2019; and that the d ci 1 n after 25 th N , t wh wa u ful ould only be made r, 1 . Th t, in · s , h wa dismissed on 22 nd No, n b r 1 b for on id ration of his application for S c uld b 1 d In re-e amination, the complainant stated that before they could authorise the pay1nent of the dinner allowances, he had informed his super isors, in particular Mr. Matongo. That Mr. Matongo agreed and gave him a go ahead although he knew that it was not authorised but it was like a gentleman's agreement. That, that was how he informed his Branch Operations Manager, Mirriam Mbao . That even though he had produced exhibit "LG6 ", the other charge sheets were not before Court because the affected employees were not dismissed but were just given final warning letters . That the charge letters were addressed to specific staff who were involve d in the case. RWl was Mutinta Mbonga Kabulembe, Employee Relations Specialist in the respondent company. She inform d the Court that she was placing r liance on her affidavit in support of the amended answer filed into Court on 12 111 February, 2021. Under cross-examination, RWl tat d that she had been with the respondent since June, 2019 and that she had been a Human J16 Resource Practitioner for 15 years. She admitted that, according to paragraph S(a) of the amended notice of complaint, the complainant was discriminated against by virtue of his job as Branch Manager as his subordinates facing similar charges were given a penalty of a final warning while he was dismissed. That the four subordinates were Mirriam Mbao, Reuben Chilufya , Makazo Mundia and Lucy Chileshe. That they were charged with the offences of fraud, falsification, dishonesty and failure to report. She confirmed that the offence of dishonest conduct and fraud , embezzlement were common to the complainant and the subordinates. She stated that the offence of falsification of staff imprest and failure to report any irregularity or an offence relating to a financial loss were not the same. She stated that the penalty for abuse of authority was dismissal but a final warning letter and demotion on first breach; and summary dismissal on second breach. She denied that the complainant was serving under any prior warning but stated that there was context that was applicable in determining disciplinary outcomes. The witness confirmed that the penalty for dishonesty conduct, and fraud, embezzlement was summary dismissal. That the penalty for failure to report an irregularity relating to a financial and falsification of staff imprest was also summary dismissal. That of the four offences the complainant was facing, three were dismissible while one attracted a final warning. That all the offences the complainant's subordinates faced were dismissible offences. That they were charged under the same disciplinary .. J17 code as the co1nplainant . Sh admitt d that, in general, there ought to b e fairn and onsi t n y in all disciplinary process es. But that that did not hav to be nee sarily so with the re pondent company. Tha t taking into consideration the aspect of seniority depend d on the company 's policies . The witness confirmed that the complainant's subordinates were given final written warnings. That according to the policy statement at page 40 of the code of conduct, 'MMH2' the offences in the disciplinary code were not to be read in isolation but in conjunction with the other provisions of the entire document. That the group code of conduct, 'MMH l' at page 13 implied that a senior employee could receive a stiffer punishment compared to that of junior employees. That there was additional responsibility with regard to Managers. That between th e disciplinary code and the code of conduct none was superior to the other. The witness denied that the complainant was punished more severely because of his seniority. She stated that much more was expected from the complainant in line with the provisions of the code of conduct . She denied that the complainant was discriminated against because of his seniority. She confirmed that the complainant's subordinates returned to work after being given the final warning l tter s but others had since left. She stated that the omplain nt w s p id his terminal benefits. That he was not p id for hi rvice period. She admitted that the event that 1 d to the complainant's dismissal J18 was the same ev nt th t l d t oth r b ing giv n final written warnings . In re-e an1in ti 1 th witn xpl 111 d th t wh h m ant by stating that th r wa ontext appli able in determining disciplinar ut om wa that ach ca e wa s to be looked a based on it o n merits and d emerits. Further, that the code of conduct, 'MMH2' at page 5 5 guided that the list of offence s was not e haustive and that the respondent reserved the right to administer outcomes as it deemed fit as provided for in exhibit 'MMH3 '. That although the concepts of 'fairness and consistency' were general principles, there were variations in different organisations and for the respondent, the group code of conduct provided further guidance around the treatme nt of and expectations from Managers. In response to the question why the complainant's subordin te had different outcomes as compared to the complainant , th witness explained that the complainant was the m t n1or person at the branch and th first line of d f n in m n g ·ng conduct and financial ri k on b h lf of th r pon nt . h t b approving th p ym n o whi h hi ubo din t r not entitled, he h d xpo d th r ond nt t fin n 1 1 ri ks. The witne ss reit rat d th th mp! in nt w not discriminated agains t as he w giv n a f ir h n to b h ard and to respond to the alle gations. Further, that he was given the right of appeal J19 which he exercised and in coming up with the verdict, the respondent considered all the information that was available to it, and the complainant's own admission of guilty. RW2 was Maxwell Mambo, Banker. He informed the Court that he was one of the panelists that sat to hear the complainant 's case. He testified that it was correct that out of all the people that were implicated, the complainant was the only one that was dismissed due to the fact that he was the Controlling Officer at the branch where the incident occurred. Further, that other than being the Controlling Officer, all the other staff who were involved referred to the complainant as having advised them to make the same claims and he approved accordingly. With regard to the punishment · meted out against the complainant , the witness testified that in meting out the punishment, the respondent relied on its process called the Fair Accountability and Disciplinary Process (FADP). That the FADP gave guidance on the charge that could be given on a particular case and the would-be result based on the charge given by the Line Manager. That it gave leeway to give out the charge best suited to the case being heard. The witness referred the Court to page 3 of 'MMH2' and st ted that according to that policy s tatement, the respondent res r ed the right to take any disciplinary action as it deemed appropriate as per the case being heard . The witness stated tha t he was also on the hearing J20 panel of the cases for the members of staff that were charged with the complainant. The witness referred the Court to page 17 of 'MMH2', and stated that the charges on the schedule of offences were not exhaustive and that the hearing panel was allowed to give the final verdict for the charge given. He explained that the complainant was dismissed based on the fact that he directed the members of staff to claim the allowances they obtained from the respondent which they were no t supposed to obtain and he approved the same allowances. That the respondent did not dismiss the other employees on the basis that they referred to the Controlling Officer who was the complainant to have authorised them to make the claims . That the respondent saw it fit to award the other employees final written warning letters; and to summarily dismiss the co mplainant. During cro s s-examination, the witness admitted that he was a Banker; and that someone working as a Human Resource Manager in a bank could al so qualify to b e called a Banker. That he was a Loan Processin g Manager. He sta ted that 5 or 6 of the complainant ' s subo rdinates were invo lve d in the matter of allowances and they w r e all charged with d ismissible offences. That the offenc es were : frau d and embezzlement, dishonest con d uct, f ailrure t o rep or t irr egu larities or an offence relating to financial irregularity . He sta ted that h e did n ot have any J21 documents to show that the subordinates had reported to management about the failure to report irregularities and he was not aware at all if they had reported to management. He admitted that even the offences with which the complainant was charged were all dis1nissible just like for the other six employees. That he did not know who was the senior most among the other six employees. That Miriam Mbao was the Branch Operations Manager and was reporting to the Branch Manager. That she was not at the same level with the complainant but they both carried the same title of 'Manager.' He denied that Mirriam Mbao used to report to the Head Office and explained that the respondent had matrix reporting lines so at the branch, she used to report to the Branch Manager who was the complainant, with a dotted line into head office for operations governance. That by dotted line, he meant that Mirriam Mbao was specifically under the complainant and in terms of approvals and everything in the system, as well as assessment of performance, she used to report to the complainant. That the dotted line came in because one is not your full time line Manager where you get to report and the other dotted line came in for governance only. That that meant that one had other reporting responsib ilities other than to the line Manager. He stated that he did n o t h ave Mirriam Mbao's report to the head offic e over thi s m at ter. That he wa s also not aware if Mirriam Mbao was full y awar e abou t th e issue of allowances but never J22 reported to the head office. He denied that in an ideal situation, Mirriam Mbao was supposed to report the payment of the allowances to head office. He stated that he was not aware if Mirriam Mbao approved the allowances. He admitted that the same tools of discipline, the disciplinary code and other policies and rules were supposed to apply to everyone. That it would not necessarily be discriminatory if the rules were applied differently to different people. He explained that there were exceptions that had to be taken into consideration when looking at the charges as the disciplinary code clearly stated that it was not exhaustive but provided guidance on how to handle matters. That the document did not provide that a senior person had to be punished more than the juniors. He denied that the complainant was punished more than the junior employees because of his rank. That the complainant and the juniors did not receive the same punishment as the juniors were given final written warnings while the complainant was dismissed for the same dismissible offences. That between final written warning and summary dismissal, the latter was the harsher punishment. He denied that the complainant was dismissed because of being a Branch Manager. That the complainant was dismissed because he was the Controlling Officer of the Branch. He stated that discrimination was treating a person differently . He admitted that the complainant was treated differently from the other five. When referred to paragraph 5 of the amended notice of complaint, the witnes s stated that he was not confortamble with J23 the removal of the words 'Controlling Officer' and replacing them with Branch Manager as the statement did not provide the circumstances in which the verdict wa s provided. He stated that the Human Resuorce must have issued a dismi ssal letter to the complainant. That the witness did not have sight of the dismissal letter. When referred to the dismissal letter, 'MH9', the witness stated that the letter did not indicate that the complainant was dismissed because he was the Controlling Officer and the others were let scot free because they were not Controlling Officers. He stated that did not come across the suspension letters for the other employees and that they were not produced to the Court. In re-examination, the witness stated that Mirriam Mbao was not expected to report to the head office as the first point of reporting was the Line Manager. He stated that the complainant approved the allowances claimed by the staff. He stated that the complainant was treated differently based on the facts of the matter in which he was supposed to protect the assets of the respondent bank such as money and the allowances that were paid out. I have considered the affidavit and viva voce evidence from both parties . I have also considered the fin al written submissions filed by both parties . J24 The facts which were common cause are that the complainant was employed by the respodennt as a Bank Clerk on 22 nd February, 1993 and he rose through the ranks to the position of Branch Manager , Kitwe branch, a position he held until he was dismissed on 22 nd Noven1ber, 2019 . The events leading to his dismissal were that the complainant proposed to his subordinates , Tellers named: Sheila Zulu, Makazo Mundia ' Reuben Chilufya and Luchileshe who used to knock off around 19 .00 hours to make claims for dinner allowance which was only due to the Tellers if they knocked off at or after 19. 30 hours. That this was done in order to motivate the Tellers as they were working under a lot of pressure owing to understaffing. Upon making the said claims for dinner allowances, the complainant appro ved the payments. When it was discovered that the complainant had approved the payment of the dinner allowances to his subordinates which dinner allowances they were not entitled to, the respondent wrote the letter, 'MMHS' dated 20 th September, 2019 to the complainant wherein he was asked to show cause why disciplinary action should not be taken against him. In response to that letter, the complainant wrote the letter, 'MMH6' dated l5 1 October, 2019, wherein he did not dispute having allowed the Tellers to claim for the dinner allowances, he regretted his action and appealed to the respondent to exercise leniency to him. The complainant was then charged with the offences of abuse of author ity; dishonest conduct; fraud, embezzlement; and fals ification of staff imprest claims in J25 accordance with the Fare Acountability Treatment Processes and Procedures, 2016 handbook while his ubordinates were charged with the offences of dishon st conduct; fraud, embe zzlement; falsification of staff imprest claims; and failure to report irregularities . A disciplinary hearing wa s held on 14 th October, 2019 after which the complainant was found guilty on all charges and summarily dismissed with effect from 22 nd November, 2 O 19. On the other hand, his subordinates were given final written warnings. The complainant appealed against his dismissal but his appeal was unsuccessful. From the evidence on record, the questions for determination are : 1. Whether the complainant's dismissal from employment was wrongful and unfair thereby entitling him to the payment of damages. 2. Whether the complainant is entitled to an order for reinstatement, in the alternative. 3. Whether the complainant should be deemed to have been retired or separated with the respondent under the voluntary separation sc heme . I will begin with the complainant's claim that his dismissal from employment was wrongful. J26 It is settled that for an employee to successfully bring and maintain an action for wrongful di mi sal, it must be shown that the employ r breach d th dis iplinary procedures under the contract of 1nploym nt, th rul of natural justice and/or indeed the proc dur outlined under the Employment Code Act no. 3 of 2019 . Hon. Dr. Judge W. S. Mw enda, learned author of the book entitled 'Employment Law in Zambia: Cases and Materials' states at page 18 that: law. When considering whether a dismissal is the product of "The concept of wrongful dismissal common is wrongful or not, the form, rather than the merits of the dismissal must be examined. The question is not why, but how the dismissal was effected." Further, in the case of Chilanga Cement v Venus Kasito 1 , the Supreme Court held that: "The concept of wrongful dismissal is essentially procedural and is largely dependent upon the actual terms of the contract in question." The above authorities have provided enough guidance as to what amounts to wrongful dismissal. In casu, it is on record that when it was discovered that the complainant had approved the payment of dinner allowances for his subordinates which dinner allowances they were not entitled to, the respondent charged him and asked him to exculpate himself to show cause why di ciplinary action should not be taken against him. In response to that letter, the complainant J27 wrote the letter, 'MMH6', wherein he explained the reasons why he had allowed his subordinates to claim for dinner allowances. The complainant was later charged with the offences of abuse of authority; dishonest conduct; fraud, embezzlement; and falsification of staff imprest claims contrary to clauses 1.3.k, 1.4.f, 1.4.i and 1. 5 .d, respectively. A disciplinary hearing was held on 14 th October, 2019 and at the conclusion of the hearing, the complainant was found guilty of the subject offences and summarily dismissed from employment on 22 nd November, 2019. The complainant was informed of his right to appeal which he did but his appeal was unsuccessful. From the above facts, it is evident that the respondent had complied with its disciplinary procedures, the rules of natural justice and the Employment Code Act when dealing with the complainant's case. On the totality of the evidence in this case, I am satisfied that the complainant was accorded all his rights to a fair hearing. In this regard, the complainant has, on a balance of probabilities, failed to prove that his summary dismissal from employment was wrongful. Therefore, his claim in this respect is accordingly dismiss e d . I no w turn t o t he qu es tion wheth er the comp lainant's dismissal from emplo y m ent wa s unfair. In d et erminin g wh ether th e di smissal was unfair , be s ide s the usual co n sid eratio n s, I will also take into a ccount t h e issue whether the complainant was treated J28 in a discriminatory manner by the respondent when it dismissed him from employment. The learned au thor , Jud g Dr. W. S. Mwenda and handa Chungu in their book n titl d : A Comprehensive Guide to Employment Law in Zan1bia, s tate at page 241 as follow s: • "Unfair dismissal is dismissal that is contrary to the statute or based on unsubstantiated ground. For unfair dismissal the Courts will look at the reasons for the dismissal for the purpose of determining whether the dismissal was justified or not. In reaching the conclusion that the dismissal 1s unfair, the Court will look at the substance or merits to determine if the dismissal was reasonable and justified." I On the basis of the above authority, for the complainant to succe ed in his action for unfair dismissal, he must show that the responden t based his dismissal on unsubstantiated grou nds or that his di smissal was in breach of statutory provisions . Further , the learned authors referred to above in the same book: A Comprehensive Guide to Employment Law in Zambia, st ate at page 3 54 that di s missal based on any discriminatory grounds as enacted in sec tion 108( 1) of the In d ustrial and Labour Relation s Act , Chapter 26 9 of th e Laws of Zambia and section 5(2) of the Employment Cod Ac t No. 3 of 20 19 woul d amount to unfair dismissal. J29 Firtsly, I will detennine wheth r the dismissal of the complainant was based on unsubstantiat d ground dismissal. o a to amount to unfair It is undisputed that the complainant was dismi sse d from en1ployn1ent for the offences of abuse of authority; dishonest conduct; fraud, embezzlement; and falsification of staff imprest claims . It is not in issue that the complainant in his capacity as Branch Manager for the respondent's Kitwe branch, admitted having approved the payment of dinner allowances to his subordinates despite knowing very well that they were not entitled to the said dinner allowances. It is, therefore , clear that before the respondent dismissed the complainant, it had satisfactorily established that the complainant had committed the subject offenc es. Therefore, I find that there was a substratum of facts to support the disciplinary measure that was taken against the complainant. The second limb of the unfair dismissal is whether the respondent had treated the complainant in a discriminator manner when it dismissed him. The complainant has claim d th t he w discriminated against by virtue of hi po itin Br n h M nag r because his subordinates, who wer 1 o ch rg d with similar off enc es, were just given final warning letters v lid for 12 months while he was J3 0 summarily dismi ssed . That the offe nc es he and his subordinates were charged with arose from the ame transaction and facts, that is , the payn1ent of dinn r all owanc es whic h had not accrued to then1. That, th r for , h wa s unfairly treat ed and discriminated again t by virt u of his senior po sition of Branch Manager . On the other hand , the respodennt denied that the comp lainant was treated in a discriminatory manner when it summarily d ismissed him but gave final warning letters to his subordinat es. That the complainant was the only one that was dismissed du e to the fact that he was the Controlling Officer at the branch where the incid ent occurred . That in meting out the punishme nt , the respond ent had complied with the Fair Accountability Treatm ent Proc es ses and Procedures, 'MMH2'. That the according to that policy doc ument , the respondent reserved the right to take any disciplina ry action as it deemed appropriate based on the circumstanc es of each particular case. It was argued th at the complaina nt was dismissed based on the fact that he had directed the m embers of staff to claim the allowances which he had app r oved . That the respondent deemed it fi t to award the o th e r e mp loyees final warning letters and to dismiss the complaina nt . That t h e complaina nt wa s a senior member of staff but he fa ile d to le a d b y exa m pl e b y failing to co m ply with the terms of his con trac t a nd o t h er p olicies tha t were applicable to h im and o t her emp loyees. It was th e r es pondent ' s argument that J31 the complainant was not discriminated against as there was nothing improper about a senior member of staff being punished more severely than the others and the punishment was commensurate with the offences that he had committed. That the complainant was dis1nissed because he failed to abide by the respondent's policies and procedures. I have considered the arguments from both parties. Dismissal based on discrimination is prohibited under the Industrial and Labour Relations Act, Cap.269 of the Laws of Zambia and the Employment Code Act No. 3 of 2019. Section 108( 1) of the Industrial and Labour Relations Act, Cap. 269 of the Laws of Zambia provides as follows: "No employer shall terminate the services of an employee or impose any other penalty or disadvantage on any employee, on grounds of race, sex, marital status, religion, political opinion or affiliation, tribal extraction or status of the employee". Section 5(2) of the Employment Code Act provides that: "An employer shall not, in any employment policy or practice discriminate, directly or indirectly, against an employee or a prospective employee- (a) on grounds of colour, nationality, tribe or place of origin, language, race, social origin, religion, belief, conscience political or other opinion, sex, gender, pregnancy,marital status, ethnicity, family responsibility, disability, status, health, culture or economic grounds; and (b) in respect of recruitment, training, promotion, terms and conditions of employment, termination of employment or other matters arising out of the employment." J32 Furth er , section (4) (ct) o f th f·.mpl oyn nt o t p r ovi d es tha t : I pl "An of an n pl g ound und t t rm ·na nr " ti f mpl ym nt r ·m ·na ory ad ' The 1 arne d author , Judg Dr. W. S. Mwenda and han d a hungu in their boo entitled : A Comprehe n sive Guide to Employment Law in Zambia, based o n the decisions in the cases of Grayson Kachikoti v TAP Bui ding Products Limied , 2 and Edward Mwe shi Chile he v Zambia Consolidated Copper Mines 3 , st ate at page 354 that: litigant to succeed with a claim f or unfair "For any discrimination, he or she must prove that the dismissal could no have been effe cted had there not been discrimination on any of the grounds stipulated in section 108(1) of the Industrial and Labour Relations Act . I is worth no ting that a dismissal can occur for a variety of reasons . Where this occurs , the employee will have to prov dismissal wa the ha discriminatio n." pnmary reason the for In the present case , it is incumbent upon the mpl 1n nt t p r ove hat th p rimary r a s on for h i di m i di sc rimina tion . Th mpl 1n n h l ·m th t d iscrimin a d again by vi a s he wa s di mi d from h 1 n · r , il rdin t were jus t giv n final wa n in g 1 n th were all charged with aro from th , m t n , ti n . J33 I have perused the minutes of the complainant's disciplinary hearing, 'MMH8' and th summary dismissal letter, 'MMH9'. None of these documents how that the rea on the complainant was disn1issed was because he was the Branch Manager. From the evidence , it has clearly emerged that the complainant admitted having committed all the offences that he wa s charged with. On that basis , the respondent found him guilty and imposed the appropriate punishment of summary dismissal in accordance with the Fair Accountability Treatment Processes and Procedures handbook, 'MMH2'. Therefore, I have no doubt in my mind that the complainant was dismissed primarily because of the offences he had commited and that his dismissal was not based on any of the grounds for discrimination. In this regard, I am quite satisfied that the respondent validly exercised its powers when it dismissed the complainant. On the totalilty of the evidence in this matter, I find that the complainant has, on a balance of probabilities, failed to prove that his dismissal from employment was unfair either arising from lack of substantiate d facts or on account of discrimination. As a result, his claim is accordingly dismi ssed. J34 The complainant having fail d to prove his claim that his dismissal from employm nt wa wrongful and unfair, it follows that his claim for r in tat 1n nl ha also fail d . I now come to the complainant's claim that he should be deemed to have been retired or separated with the respondent under the voluntary separation scheme. In opposing this claim, the respondent stated that the voluntary separation scheme, 'MMH13 ' was open from 15 th to 25 th November , 2019 ; and that the decision as to who was successful could only be made after 2 S th November , 2019. That, in the complainant 's case , he was dismissed on 22 nd November, 2019 which was before the consideration of his application for VSS could be made. It is not in dispute that the complainant had applied for VSS by his letter, ' LGl' dated 16 th November, 2019 exhibited to his further affidavit in support of the notice of complaint. According to the document on VSS offer, 'MMH 13 ', the VSS offer was open from 15 th to 25 th November, 2019 and management was to evaluate the respondent's employees' applications and communicate to them the outcome of their applications by 1st December, 2019. The re pondent's management team reserve d the right and had the di cretion to se l ct the final individuals to be offe red the VSS. B for th omplain nt' application for VSS was subjected to such an valuation, he was dismissed from employment on 22 nd Nov mber, 2019. As such, he ceased to be J35 eligible to be considered for VSS as he was no longer an employee of the respondent. Therefore, his claim to be deemed to have been retired or separated from the respondent under VSS has failed and is accordingly dismissed . I make no order for costs. Leave to appeal is granted. Delivered at Ndola on the 16 th day of December, 2022. Davies C. Mumba HIGH COURT JUDGE