Manica Zambia Ltd v Mukasa (Appeal 115 of 2001) [2003] ZMSC 122 (4 June 2003)

IN THE SUPREME COURT OF ZAMBIA APPEAL NO. 115/2001 HOLDEN AT NDOLA (CIVIL JURISDICTION) BETWEEN: MANICA ZAMBIA LTD APPELLANTS AND PETER MUKASA RESPONDENT CORAM: Chirwa, Lewanika and Mambilima, JJs on 5th March 2002 and 4th June 2003 For the Appellant: Mr. M. Msoni, J. B. Sakala & Co. For the Respondent: Mr. B. Kang’ombe, Kang’ombe & Co. J U D M E N T Chirwa, J. S. delivered judgment of the Court: - This is an appeal by the appellant, MANICA ZAMBIA Ltd., against the High Court finding that the dismissal of the respondent PETER MUKASA from employment of the appellant was wrongful and null and void and awarded him K20 million as damages for the wrongful dismissal. The evidence before the court below was that the respondent was employed by the appellant in August 1996 as acting warehouse clerk and his position was confirmed on 20lh December 1997. Among his duties was the supervision of workers in loading and off loading of freight from Zambia Railways goodshed and transporting the same to airport or other authorised destinations. This involved the tallying of the goods received with what was contained in the trip sheets. The incident that led to the dismissal of the respondent happened on 11th June 1997. The : J2 : respondent was supervising the off loading of cartons of fish from South Africa at Zambia Railways goods shed at Ndola to be transported to Ndola Airport. Whilst on duty he was approached by a Mr. Mutambo who was his senior and told to accompany him to the airport. This was apparently after it was discovered that some 1011 cartons of fish were missing and were not accounted for in the appellants records whose duty it was for the respondent to record the movement of the goods from one point to the other and this is done by tallying the trip sheets with the physical check of the goods transported. In the instance, inspection revealed that 1011 cartons of fish were missing. The respondent was charged with the offence wilful disobedience of lawful instruction and gross negligence under clauses B2 (1) andC21 of the Disciplinary Code. Clause B.2 falls under the heading “Gross negligence of Duty” and reads as follows: “B.2 Gross Negligence of duty. (i) Negligent loss of company/client’s property act whereby an employee through carelessness or negligence causes or loses company/client’s property or is unable to account for it satisfactorily. (ii) (iii) (Not relevant to the present proceedings) (Not relevant to the present proceedings) (iv) (Not relevant to the present proceedings) Category C falls under “offences and penalties” and offences that come under “C” attract instant dismissal. C21 reads: “Misconduct, wilful disobedience, dishonest conduct, neglect or incompetence.” After being charged with disciplinary offence as shown at page 36 of the record, there is no response to this charge but the respondent attended a disciplinary hearing at which his Union Representative was also present. The Disciplinary Committee found the changes proved and recommended the respondents dismissal. The respondent was dully dismissed. His appeal to General Manager was unsuccessful and his appeal to the Managing Director was also unsuccessful and this was rendered after the respondent commenced these proceedings. : J3 : The learned trial judge in arriving at his decision relied heavily on the submission by counsel for the respondent in which it was submitted that the penalty for disobedience was a warning and not dismissal He further attacked the composition of the Disciplinary Committee, submitting that it was biased as such the rules of natural justice were breached. The learned trial Judge held that there was no negligence when he read the evidence of the defence witness to say that he did not know where the fish went missing as it had been stated that there was no missing Tish at the Zambia Railways warehouse and that the respondent was not responsible thereafter. Thereafter the learned trial judge concentrated on submission by counsel for the respondent that there was no evidence of wilful disobedience of orders and negligence was not proved. That in any event the offence with which the respondent was charged only warranted a warning as a first offender. He therefore declared the respondents dismissal as wrongful and null and void ab initio and awarded the respondent K20,000,000-00 as damages. However, he declined to order reinstatement. Il is against this whole judgment that the appellant have appealed against. There are three grounds of appeal according to the memorandum of appeal and these have been fully supported in the written heads of arguments and oral submission before us at the hearing of the appeal. Also the respondent did file detailed heads of arguments and augmented by oral submissions. The first ground of appeal was that the learned trial judge erred in law when he held that the dismissal of the respondent was wrongful, null and void ab initio because the evidence or record shows that the respondent was found guilty of the offence charged by a competent disciplinary committee in compliance with the appellant’s disciplinary code and procedure. It was argued that the respondent was rightly charged with the offences and the disciplinary procedure was followed and the disciplinary committee found the respondent guilty of the offences. It was further argued that there was evidence that the respondent was responsible for checking the good received and ensuring that the trip sheets tallied with the physical stock and because of the respondent’s failure, the appellant’s client lost 1011 cartons of fish and that he failed to ensure that all documents were signed by the three parties involved, namely Spomct. Zambia Railways and the appellant through the respondent. These : J4 : documents showed the movement of freight by Spomet from South Africa up to the Zambia border and from there by Zambia Railways up to hand over to the appellant and receipted by the respondent. In supporting the learned trial judge, it was submitted on behalf of the respondent that the learned trial judge was on firm ground in making his findings as no evidence was led to prove the charges levelled against the respondent. It was submitted that the respondent followed the procedure of receipting the goods received. It was further submitted that the procedure followed by the appellants in disciplining the respondent was full of irregularities such as that the minutes of the disciplinary committee meeting were not produced in the court below and the respondent was not furnished with the summary of the transcript of the investigations. In dealing this ground we wish to state that on evidence there is no dispute as to the responsibilities of the respondent both from the evidence of the appellant and the respondent himself. There is also no dispute that a charge was raised against the respondent for wilful disobedience and negligence and as a result of which a disciplinary committee was convened at which the respondent attended and Union Representatives. The issue to be determined by the court was whether there was evidence to prove the charges levelled against the respondent. From the evidence led on behalf of the appellant, it was shown that the respondent was responsible for receipting the goods at Zambia Railways goodshed and the goods were transported to the airport by the appellant and put into its warehouse where the respondent was again to tally the trip sheets with the physical stock delivered. Evidence was that the goods were received by the respondent at Zambia Railways goodshed on behalf of the appellant. The respondent dispatched the same to the airport and the same were to be accounted for by the respondent. The respondent was responsible for the goods from Zambia Railways up to the appellant’s warehouse at the airport. The goods in question disappeared in transit, whose transit the respondent was responsible. He was unable to account for these goods. This is borne out at pages 95 and 96 in the evidence of DWl under cross-examination. As against this evidence the respondent does not dispute that he was responsible for the goods from Zambia Railways to the appellants warehouse. He dwelt most on how he was apprehended, what the police told him after investigations and on the disciplinary proceedings. This in turn influenced his counsel to dwell too much on the procedure and not the issues involved in the matter and the learned judge was equally misled by the submissions by counsel. The evidence clearly established that the goods went missing whilst under the control of the : J5 : respondent. Mr. Chipimo never said in his evidence that the respondent was not responsible for the goods received as we have referred to at pages 95 and 96 of the record. Coming to the penalty meted to the respondent, both counsel for the respondent and the learned trial judge were misled. What is put under what is called “category B” in the code of discipline and procedure are offences that warrant penalties that are outlined at page 10 of the code and page 61 of the record. Then under “Category C” are offences that warrant dismissal - “offences warranting instant dismissal”. The respondent was charged under “B” and “C”. The appellant felt the offences committed by the respondent were very serious taking into account the loss to the client amounting to US$34,000. Clearly it was to the appellants discretion as to what penalty to impose and the penalty imposed is within what is provided for under the code. We are therefore satisfied that with the misdirection by the learned trial judge in the face of DW1 which clearly showed that the respondent was of gross negligence leading to the appellants goods valued at US$34,000 go missing, this first gound of appeal must succeed. There is no need to go into the second ground of appeal. As to the third ground of appeal, we were to allow it if the other grounds failed as there was no evidence as to how the learned trial judge arrived at the figure of K20,000,000 (twenty million kwacha) as damages as against this court’s guidance on damages in wrongful dismissal cases. This appeal is allowed. Costs, both in this court and the court below to the appellant to be taxed in default of agreement. D, M. LEWANIKA DEPUTY CHIEF JUSTICE D. K. CHIRWA SUPREME COURT JUDGE I. C. MAMBILIMA SUPREME COURT JUDGE