Mahlwane Adries Mashabela v National Breweries Ltd (SCZ Appeal 23 of 1999) [2001] ZMSC 97 (10 May 2001)

IN THE SUPREME COURT OF ZAMBIA SCZ APPEAL No. 23 OF 1999 HOLDEN AT LUSAKA (CIVIL JURISDICTION) BETWEEN: MAHLWANE ADRIES MASHABELA APPELLANT AND NATIONAL BREWERIES LIMITED RESPONDENT Coram: Late Muzyamba, Lewanika and Chibesakunda, JJS 12th October 2000 and 10th May 2001 For the Appellant: In person For the Respondent: N. K. Musonda of D. H. Kemp and Company JUDGMENT Lewanika, J. S. delivered the judgment of the court Our brother the Hon. Mr. Justice Muzyamba who sat with us having passed away, this judgment is to be regarded as by the majority. This is an appeal against the decision of the Industrial Relations Court as decided that the appellant’s employment was unfairly terminated and that he be paid six months salary as compensation with interest at Commercial Bank rate effective from the date of the purported termination till payment. There is also a cross appeal by the respondent against the said decision. The evidence on record is that the appellant was employed by the respondent as a Regional General Manager - Northern for a period of two years from 1st November 1996 to 31st October 1998. As part of his conditions of service the appellant was entitled to a personal to holder vehicle. On 6th December 1996 the appellant drove to South Africa using his personal to holder vehicle to attend to his personal affairs. It was common cause that the appellant did not have permission from his Managing Director, who was at the time out of the country, to undertake this journey. It was also common cause that the respondent did not allow any employee to drive a company vehicle out of the country without permission from the Managing Director. The appellant returned from South J2 Africa on 12th December 1996 and when he reported for work on 13th December 1996 he was informed by the Managing Director that he had been dismissed. The appellant felt that he had been unfairly treated as he had not been charged with a disciplinary offence or been given an opportunity to exculpate himself and instituted proceedings in the Industrial Relations Court. The court found that the appellant’s employment was unfairly terminated and awarded him compensation of 6 months salary. The appellant was dissatisfied with this award and appealed to this court claiming that on the evidence before it, the court ought to have made an order to reinstate him or in the alternative awarded him damages equivalent to his salary for the remaining period of the contract. The respondent has also cross-appealed claiming that on the evidence before it the lower court ought to have found that the appellant’s dismissal was done in accordance with the conditions set out in his contract of employment. Alternatively, that any damages awarded to the appellant should be limited to the notice period contained in his contract of employment. We have considered the arguments advanced by the appellant and Counsel for the respondent and we do not intend to repeat them here as they are on record. The appellant and the respondent signed a contract of employment and clause 9 of the contract provided that either party may terminate the employment by giving the other party three months notice. If the court below found that the appellant’s employment was wrongfully or unfairly terminated the measure of damages is limited to the notice period as this was an ordinary contract of employment. The court below was in error when it awarded the appellant compensation of six months salary. We would dismiss the appeal and allow the cross appeal and reduce the compensation payment to the appellant to three months salary. We make no order as to costs. D. M. LEWANIKA SUPREME COURT JUDGE L. P. CHIBESAKUNDA SUPREME COURT JUDGE