Lumwana Mining Company Ltd v Mwiche and Ors (Appeal 107 of 2014) [2017] ZMSC 257 (10 March 2017)

JI /a IN THE SUPREME COURT OF ZAMBIA APPEAL NO. 107/2014 HOLDEN AT NDOLA (Civil Jurisdiction) BETWEEN: SCZ/8/48/2014 LUMWANA MINING COMPANY LIMITED APPELLANT AND ZEBED MWICHE AND 15 OTHERS RESPONDENTS CORAM: Mambilima, CJ and Kaoma and Musonda, JJS On 7th March, 2017 and 10th March, 2017 For Appellant: Mr. S. Chisenga - Corpus Legal Practitioners For Respondents: In Person JUDGMENT KAOMA, JS, delivered the Judgment of the Court Cases referred to: 1. Zambia National Provident Fund v Chirwa (1981) Z. R. 70 2. Attorney-General v Richard Jackson Phiri (1988-89) Z. R. 121 3. Wilson Masauso Zulu v Avondale Housing Project (1982) Z. R. 172 4. The Minister of Home Affairs and Attorney General v Lee Habasonda (suing on his own behalf and on behalf of the Southern African Centre for the Constructive Resolution of Disputes) - SCZ Judgment No. 19 of 2007 5. William Harrington v Dora Siliya and Attorney General (2011) Volume 2, Z. R. 253 Legislation referred to: 1. Industrial and Labour Relations Act, Cap 269 J2 Works referred to: 1. Law of Employment, Norman Selwyn, 8th Edition, London 1993 paragraph 9.25 The respondents who are former employees of the appellant filed a complaint in the Industrial Relations Court (IRC) seeking for, inter alia, a declaration that their dismissal from employment was unfair and unlawful; an order that they be reinstated in their employment; and damages for unlawful termination of employment. The events that led to the dismissals related to an e-mail and a video titled “Poor Boy”, which was allegedly pornographic. The e-mail was received and forwarded amongst 71 of the employees on the appellant’s intranet infrastructure in contravention of the Barrick Computing and Telecommunications Policy and amounted to misuse of company property. On 7th August, 2013 the employees were charged with disciplinary offences namely: gross misconduct; misuse of company property by violating Barrick Computing and Telecommunications Policy; and distribution of pornographic, sexually explicit material or images of nudity by J3 use of the Lumwana IT network. The details of the charges were set out in the charge forms. The employees were to appear for disciplinary hearings the next day. However, on that date, they were served with amended charges, stated as follows: Category A(13) - serious offence as determined by the Acting Managing Director; Category B(6) - misuse of company property by violating Barrick Computing and Telecommunications Policy; and Category B(10) - non­ compliance with company procedures or regulations. The details of the charges were almost the same as those given to support the initial charges. In terms of the Disciplinary Code, Category A offences are dismissible while Category B offences are warning offences. Despite objection by the employees that they were not given time to prepare themselves after the amendment of the charges, the disciplinary hearings went ahead. All the 71 employees were found guilty and were summarily dismissed. They all appealed to the Managing Director. The respondents’ appeals failed while the appeals of the rest of the employees J4 succeeded and they were reinstated. The respondents then sought redress in the IRC. The respondents did not deny in their affidavit that the video was received and circulated on company intranet infrastructure in contravention of the company policy. Neither did they assert that the video was not pornographic. Their grievance was that 71 local employees were charged for receiving and forwarding the e-mail, when the same video was circulated amongst both expatriate and local employees alike; that the Managing Director who changed the charges to make them dismissible also heard the appeals; and that all cases were determined within 30 minutes of each other. They also alleged that Barrick Gold Corporation, the new owners of Lumwana Mine, had advised management to provide a new structure with between 20-25% losses of jobs and that they were selectively targeted. In the affidavit in support of the answer, the appellant asserted that it was entitled to amend the charges so that the respondents could face appropriate charges; that the disciplinary code had provision for allowing the Managing J5 Director to determine a serious offence under Category A(13); and that even assuming it did not follow laid down procedure, that could not have prevented it from dismissing the respondents as the offences they committed attracted summary dismissal. The appellant denied that the Managing Director heard or chaired the disciplinary proceedings and pleaded that under the disciplinary code, appeals were always heard by the Managing Director. The appellant also denied that management was advised to provide a new structure with 20-25% losses of jobs or that there was selective targeting of the respondents. It was also averred that the other employees were not reinstated as they were not found guilty but their suspensions were lifted and they were allowed to continue working. Two of the respondents testified at the trial. Zebed Mwiche (CW1) acknowledged that the “Poor Boy” e-mail was going round within the Lumwana server. He revealed that it was brought on the server through two sources, Robert Chisanga and Fridah Chisenga and that most of them got their mail through Fridah as they were all connected to the server. J6 He testified that the server was very well protected against any unwanted material or spam; outside mail would not reach the server unless someone acknowledged receipt. He agreed that he watched the video. He was angered by the content. But he said the person who sent it to him was only trying to educate him as he had two boy children, the youngest being 11 years and used to remain home with a maid and his wife’s niece as his wife was working. He also accepted being served with the initial charge of watching the “Poor Boy” video which was described as pornographic and the amended charge. He thought the appellant took advantage of the mail to reduce the number of employees as there was re-organisation. He denied in cross­ examination, that the e-mail was pornographic but admitted that there was no evidence of the alleged down-scaling. Simon Matoka (CW2) also accepted receiving the e-mail and alleged that his junior employee forwarded it to his own mail box. He also agreed that he apologised for unknowingly forwarding the e-mail in his appeal letter. He too did not f J7 consider the mail to be pornographic. He admitted that all the 71 employees received and forwarded the e-mail. Alex Njanji (RW1), the appellant’s Human Resources Manager confirmed that the respondents were summarily dismissed for breach of the disciplinary code after they received pornographic material using the company’s IT infrastructure and forwarded it to others; and that the charges were amended by the Managing Director under Category A(13) of the disciplinary code. According to him, the respondents were accorded an opportunity to be heard; they were notified in writing; they all appealed and the dismissals were upheld. He said they never complained of discrimination prior to the charges. He admitted in cross-examination that all employees involved in the video were initially dismissed and that David Londono changed the charges and heard the appeals. The court below considered the evidence and the submissions by the parties and took the view that the respondents were never accorded an opportunity to respond and that the appellant had not contested the allegation that the Managing Director who amended the charge to include J8 Category A(13) also heard the appeals. To the court, that state of affairs offended against the principles of natural justice that seek to ensure that no man shall be judge in his own cause; that no man shall be condemned unheard; and that parties shall be given adequate notice and chance to be heard. However, the court was alive to the position of the law as expounded in the case of Zambia National Provident Fund v Chirwa1 that procedural lapses would not render a dismissal a nullity if there is evidence that the employee had committed an offence for which he was dismissed. The court further considered whether it was established that the respondents had committed an offence for which they could be dismissed. The court opined that on its own, Category A(13) does not define any offence; and that the serious offence contemplated under item 13 must not be elsewhere defined in the disciplinary code or if it is already defined, for instance under Category B or C, the Managing Director must then elevate it to such a serious offence so that it becomes dismissible. The court was also of the view that the circumstances, notwithstanding, the serious offence so defined J9 must be expressly named. In making these comments, the court had in mind the principle that an employee is entitled to know the nature of the charge against him in sufficient detail to enable him to prepare his case. The court observed that the so-called “serious offence as determined by the Managing Director” did not disclose any offence upon which the respondents could be dismissed. The court considered the details of the charges to be insufficient especially that the same facts also supported the Category B offences. The court concluded that the respondents could only be disciplined for the specifically stated Category B offences for which they could only be warned. The court also considered whether it had been established that the respondents had committed the Category B offences predicated on the allegation that the “Poor Boy” e­ mail had pornographic content. The court was alive to the respondents’ testimony that the video was not pornographic and the appellant’s contrary position that it was, and lamented that the record of the initial disciplinary and appeal hearings and the statements of witnesses, if at all, used in the J10 hearing were not availed and that as such, it was unable to say whether the offences were established. The court referred to the case of Attorney-General v Richard Jackson Phiri2. Consequently, the court found that there was nothing in the case to justify the disciplinary action and that the respondents were dismissed for an undefined offence and therefore, the dismissals were wrongful and unlawful. The appellant has now argued five grounds of appeal. Ground 1 attacks the statement by the court below that the e­ mail was not availed to the court to enable it determine whether the material was indeed pornographic; a conclusion which was contrary to the rule of evidence that the legal burden of proof lies on the claimants to have produced the video before court to prove that the offences charged were not proved at the disciplinary hearing which led to the dismissals. In support of this ground, the appellant submits, briefly, that it was the responsibility of the respondents who were the complainants, to prove that the disputed video was not pornographic and not that of the appellant, and that in effect the court below unlawfully shifted the burden of proof to the JU appellant. Various authorities, to name only the case of Wilson Masauso Zulu v Avondale Housing Project3 are cited to buttress this argument. It is argued that as the respondents failed to adduce evidence to support their claim, they did not discharge their legal or evidential burden of proof. The respondents submit that there is nothing in the judgment to suggest that the court put the burden of proof on the appellant; that the court merely lamented that it had not been given the evidence that was before the disciplinary committee and the Managing Director who heard the appeals. They have cited section 85(5) of the Industrial and Labour Relations Act, Cap 269 which provides that the court shall not be bound by the rules of evidence in civil and criminal proceedings but that the main object of the court shall be to do substantial justice between the parties. They argue that the issue of the burden of proof is a rule of evidence. In ground 2, the appellant alleges that the court below misconstrued that by hearing the appeals of the respondents, the Managing Director had violated the rules of natural justice when in fact the disciplinary hearing was heard by a J12 disciplinary committee of which the Managing Director was not a member and that he only heard the appeals against the dismissal of the respondents. The argument by the appellant is that it was erroneous on the part of the court below to state that by hearing the appeals of the respondents, the Managing Director had violated the rules of natural justice when there is no evidence on record to show that the Managing Director was present at the disciplinary hearings. We are urged to reverse this finding of fact on the basis that it is perverse. It is also submitted that the respondents failed to establish any wrongful dismissal and that the court should not have found for the respondents as there was no breach of the rules of natural justice on any provisions of the disciplinary code. Further, that it was another misdirection to conclude that the offence was not defined which conclusion is contrary to the charge which captured the offence as a Category A(13) serious offence. J13 The brief response is that there is nowhere in the judgment of the court below where it is stated that the initial disciplinary hearing was before the Managing Director. In ground 3, the appellant alleges that the court below deliberately failed to fully refer to all the evidence adduced by the respondents’ witnesses in cross-examination, and to analyse the legal authorities and submissions by the appellant, thereby failing to follow precedent set by this Court on what should constitute a proper judgment. It is submitted that the court below failed to analyse, among other things, the respondents’ evidence that they were aware of the Managing Director’s powers to prefer a charge and that when the charges were amended; they were heard on the new charges. According to the appellant, the court failed to discharge its obligations in relation to writing a proper judgment. A number of authorities are again cited which we do not find necessary to reproduce. Conversely, the respondents contend that the court gave a summary of the complaint and the answer, the oral testimony of the witnesses and the arguments by counsel. It is J14 argued that submissions are for the benefit of the court which is not expected to reproduce the submissions word for word. In ground 4, the court below is accused of failure to adjudicate on whether there was any unfair dismissal as claimed by the respondents in addition to the other claims, thereby leading to a dereliction of duty by the court. It is argued that while the respondents pleaded and sought relief for unfair dismissal and evidence was led on both sides, the court failed to rule on the issue. That this was a dereliction of duty and a miscarriage of justice as it is a primary function of the court to adjudicate disputes which have been submitted for determination. Numerous authorities are again cited to support this argument. The respondents have simply argued that this ground must fail. In ground 5, the appellant alleges that the court below made a wrongful finding of fact when there was no evidence to support the conclusion that the management of Barrick Gold Corporation Limited had advised management of the appellant to provide a new structure with between 20% to 25% job losses and that the amended charge by the Managing Director J15 was not specific when in fact the amended offence was specific to the pornographic video. At the hearing of the appeal, counsel for the appellant conceded that this ground is misconceived in its entirety. Therefore, we find it unnecessary to discuss the arguments relating to this ground. We have scrutinised the grounds of appeal and the arguments advanced by the parties. As we see it, the main issue in this appeal is whether the court below was right to conclude that the dismissals of the respondents were wrongful and unlawful. In our view, grounds 2, 3, and 4 are peripheral. The question raised by ground 1 is who between the parties should have produced the video? We have held in the Wilson Masauso Zulu3 case, that where a plaintiff alleges that he has been wrongfully or unfairly dismissed, as indeed in any other case where he makes any allegation, it is generally for him to prove those allegations. We agree with the appellant that the respondents, as the people that commenced the proceedings, had the onus to prove that the dismissals were unlawful. However, we are dealing with a matter that was in the IRC. And as submitted J16 by the respondents, section 85(5) of the Industrial and Labour Relations Act provides that the court shall not be bound by the rules of evidence. Therefore, we cannot fault the court below for agreeing with the respondents that the video should have been produced by the appellant, particularly that the e-mail was received and circulated on its intranet infrastructure. In any case, when the court below made the above statement, it was discussing whether it had been established that the respondents had committed the Category B charges premised on the allegation that the “Poor Boy” e-mail had pornographic content. This is vital because the Category B offences were not dismissible. Therefore, even if the video had been produced by the respondents and the court had satisfied itself that the content was pornographic, since the Category B offences were warning offences only, any dismissal for those offences would have been wrongful. The court below had also lamented the non-production of the record of the initial disciplinary and appeal hearings and statements of witnesses. Clearly, that evidence could only be produced by the employer. Therefore, the court cannot be J17 faulted for saying at the trial the appellant neglected to provide the evidence as such it was unable to say whether or not the offences were established. The offences referred to here are the Category B offences that were not dismissible. In light of this, ground 1 lacks merit and is dismissed. Ground 2 suggests that the court below found that the Managing Director who amended the charges and heard the appeals was part of the disciplinary hearing. As rightly argued by the respondents, the court did not make any such finding. The court observed that the appellant did not contest the allegation that the same Managing Director who “amended” the charge to include Category A(13) also heard the appeals. Counsel for the appellant referred us to page 207 of the record of appeal to show that the charges were amended by Guy Cordingly while the appeals were heard by David Londono. However, RW1 conceded, on the same page, that David Londono changed the changes and heard the appeals. Regardless, that observation by the court was not the ratio for the final decision that the dismissals were wrongful. The court was alive to the law as enunciated in the Chirwa1 J18 case that procedural lapses would not render a dismissal a nullity if there is evidence that the employee had committed an offence for which he was dismissed. The appellant also argued in ground 2 that it was a misdirection for the court to conclude that the offence was not defined, contrary to the charge form which captured the offence as a Category A(13) serious offence as determined by the Managing Director. The ground of appeal relating to this argument was actually misplaced in ground 5. It is trite that the court should not sit as a court of appeal from the decision of a domestic tribunal to review its proceedings or to inquire whether the decision is fair or just or reasonable; the jurisdiction of the court is limited to the question of whether the domestic tribunal has valid disciplinary powers and if so, whether such powers have been validly exercised. In this case, as rightly put by the court below, although the amended charge form captured the offence as a “Category A(13) serious offence as determined by the Acting Managing Director”, the offence itself was not specified and in Appendix J19 1, Category A(13) is simply stated as “Any other serious offence (at the discretion of the Managing Director)”. Now, the details of the charges referred to the receiving, and distribution or forwarding of the e-mail titled “Poor Boy” which was of a sexually explicit nature involving young children having sex. The appellant should have stated whether the serious offence was the receiving or forwarding or the distribution of pornographic, sexually explicit material by use of the company IT network. In our view, the court below was on firm ground when it found that the respondents were dismissed for an undefined offence and that the dismissals were wrongful and unlawful. Therefore, the appellant’s argument lacks merit and we dismiss ground 2 of the appeal. Ground 3 alleges that the court below failed to discharge its obligation to take into consideration the evidence as a whole or to evaluate all the material evidence before it contrary to our decision in the case of The Minister of Home Affairs and Attorney General v Lee Habasonda (suing on his own behalf and on behalf of the Southern African Centre for the Constructive Resolution of Disputes) 4. J20 The court below clearly stated at page J11 of the judgment that it had considered the evidence given by the parties as well as the submissions. Surely, the fact that the court did not reproduce all the evidence on record in the judgment does not mean that it did not duly consider the evidence. And we have not set a requirement in the Lee Habasonda4 case that a proper judgment must refer to all the evidence adduced by the witnesses and analyse all legal authorities and submissions made by the parties. It is most unfortunate that counsel for the appellant has no faith in the statement by the court that it had considered the evidence. In fact, this is becoming a worrying trend at the bar. Besides, the pieces of evidence referred to by counsel were not in issue. For instance, CWs 1 and 2 did not say that the Managing Director had no power to amend the charge. The fact that all the 71 employees were dismissed and that 44 were reinstated after the appeal hearings was confirmed by RW1. And there was no dispute that the e-mail existed. The respondents just denied that they had documentary evidence of the e-mail to present to the court. Ground 3 equally fails. J21 Ground 4 equally lacks merit. We are not persuaded that there was dereliction of duty or miscarriage of justice because the court below did not adjudicate on the unfair dismissal claim. We held in the case of William Harrington v Dora Siliya and Attorney General5 that a court should adjudicate on all issues placed before it, so as to achieve finality but we also said a trial or appellate court is at liberty not to rule on an issue raised before it, if it is of the view that ruling on such an issue is unnecessary, or would go beyond what needs to be adjudicated. On the scanty evidence on record, the court could not have held that the dismissals were unfair. The end result is that we dismiss the appeal with costs here and below. I. C. MAMBILIMA CHIEF JUSTICE . C. KAOMA SUPREME COURT JUDGE ^1. MUSONDA j SUPREME COURT JUDGE