Mopani Copper Mines PLC v Katongo and anor (Appeal No.48/2021; CAZ/08/46/2021) [2023] ZMCA 179 (24 July 2023)

IN THE COURT OF APPEAL OF ZAMBIA APPEAL NO. 48/2021 HOLDEN AT LUSAKA CAZ/08/46/2021 {Civil Jurisdiction) BETWEEN: MOPANI COPPER MINES PLC...,.. r AND ESNART TEMBO KATONGO MIRRIAM BANDA ~ l lCOF ; / ~~?ti co~~• o, _ -- -1,i, -1 APPELLANT '""F, ""'\ . Z j JIJJ. ~J 'i "'0 ~;it.~·GJ .. iifr, -:fi RESPONDENT \ .t f {)/) " .,/ . 67· ll!S'-k ,, 2 11d RESPONDENT CORAM: Makungu, Ngulube and Sharpe-Phiri JJA On 17th January, 2023 and 24th July, 2023 For the Appellant: Mr. A. lmonda of lmonda & Co For both Respondents: Mr. M Ubakeni with Mr. J. Hara both ofZ . Muya & Co JUDGMENT MAKUNGU, JA delivered the Judgment of the Court Cases referred to: 1. Rosemary Ngorima and 10 Others v Zambia Consolidated Copper Mines Limited, SCZ Appeal No. 97 of 2000 2. Kitwe City Council v William Nguni (2005) Z. R 57 3. Swarp Spinning Mills Pie v Sebastian Chileshe and others (2002) Z. R.23. 4, lnterfoto Pictures Library v Stileto Visual Programmes Limited ( 1988) 1 ALLER348 5. Caroline Tomaidah Daka v Zambia National Commercial Bank Limited PLC 2008/ HP/ 0846 6. Zambia Railways Limited v v Oswell Joseph SCZ Judgment No.2 of 7. Zambia Airways Corporation Limited v Geshom B. B. Mubanga ( I 990- 1992) Z. R 149 8. Eston Banda, Edward Dalitso Zulu v The Attorney General SCZ Appeal no. 42/ 2016 9. Zambia Consolidated Copper lvtines v A1atale ( I 995- 1997) Z. R 144 10. Amiran Limited v Robert Bones, SCZ Appeal No. 42 of 2010 11. Zambia National Commercial Bank v Joseph Kangwa SCZ Appeal No. 54 of 2008 12. Kansanshi Mining Plc v Mathews Mwelwa CAZ Appeal No. 103 of 2019 13. Nevers Sekwila Mumba u Mukabi Lungu SCZ Apeal No. 200 of Legislation Referred to: 1. The Employment Act, Chapter 268 of Laws of Zambia as amended by the Employment Amendment Act No 15 of 1997 Other Authorities Referred to: 1. Halsburys Laws of England Vol. I 6 4th Edition 1.0 INTRODUCTION 1. 1 This appeal is against the decision of E. M\vansa ,J, of the High Court dated 22 nd ,January, 2021 \Vhich declared the respondents' dismissals as being both wrongful and unfair. 2.0 BACKGROUND 2.1 The respondents (complainants in the Court below) commenced an action in the Industrial Relations Division of the High Court against the appellant (respondent in the court below) by way of complaint on grounds that: 1. They were wrongfully and unfairly summarily dismissed from employment by the appellant for violation of a company policy of which they had no prior notice. 2. They were dismissed from their employment vvithout following the proper procedure during the disciplinary hearing. 3. That the dismissals were wrongful because according to the disciplinary code the offences they were alleged to have committed warranted a different penalty. 4. They were dismissed for offences that they did not commit. 2.2 The complainants sought the following reliefs: 1. A declaration that the complainants be deemed retired; 11. A declaration that the complainant's termination was v.,rongful and unfair; J3 iii. Damages for \Vrongful and unfair termination of employment; 1v. Payment of accrued terminal benefits; v. Interest on the sums found payable; vi. Any other a\vard the court may consider fit and vu. Costs 2.3 We shall henceforth refer to the parties as they are cited in the appeal. 3.0 RESPONDENTS' EVIDENCE 3.1 The brief facts were that the 1 s1 and 2"d respondents were employed by the appellant in their capacity as senior buyer and buyer respectively. 3.2 By letters dated 29th June 2018, they were individually charged \ with the offence of substandard and poor performance because they were involved in processing order no. D31509 for a Bench Vice at a high cost when a Bench Vice ordered earlier under order no. D22949 was obtained at a lower cost of $600. 3.3 They were each given chance to exculpate themselves. On 1st August 2018, the procurement superintendent individually charged them for contravening policy 039, by splitting orders. ,J4 Thal it a1nounted to unethical business conduct, substandard and poor work perforrnance, breach or repudiation of contractual obligations, aiding and abetting a breach of procedure and standing instructions, contrary to the respondent's Disciplinary code. J. 4 The respondents claimed that they \Vere not a\vare of policy no. 039 as lhe offence was nol in the Disciplinary Code and they only became aware of it when the letters dated 1 s: August, 2018 were presented to them. 3. :=i At the disciplinary hearing held on 1411 August, 2018, the I" respondent \l\las disrnissed frorn employment. In disrnissing her, the administering official told her that they had dropped the charges for deliberate breach due to lack of evidence but they upheld the charges for noncompliance with established procedure and standing instructions, as well as substandard and poor work performance. :1.6 The Is: respondent alleged lhal none of her grounds of appeal \l\lere addressed in the respondent's cornmunication to her \l\lhich was contrary to clause 8.4 of the Disciplinary Code and Grievance Procedure for senior staff e111ployees which states that an ad111inislering official should give reasons 1n writing \vhenever they dismiss an employee. 3.7 The 1st respondent averred that she \Vas unfairly dismissed because she had no authority to approve orders. She could only review and elevate a requisition lo lhe Purchasing Superintendent \vho was her supervisor. 3.8 She stated that split requisitions were never raised by her but by the end user. She had no authority to 1nake any alterations to requisitions in the system. Thal her superior the purchasing superintendent \Vho had approved the transaction was never disciplined. Al the time of being dis1nissed, split requisitions were still being processed and yel the company had put in place sorne control measures. 3.9 She further stated that the charges levelled against her were under categories 1 and 2 of the Disciplinary Code and not category 3. The penalty under category 1 ,vas a severe warning while under categmy 2, il \Vas a final warning for first oflenders. The l st respondent staled that she expected the appellant to exercise leniency as she was a long serving mernber of staff \Vith a good record, due for retire1nent and a first offender. She J6 claimed that she was entitled to gratuity at the rate of2 months' pay for every year served. 3.10 The 2 nd respondent also claimed that her dismissal was unfair and wrongful because she did not have authority to approve any orders which were processed. That she could not make any alterations to requisitions. That upon receipt of a requisition, her job was to initiate the tender process, analyse the quotations and send the requisition to the next approver. She refuted the claim that her actions led to the appellant having to suffer a loss because at that point nothing had been supplied by the appellant. She further averred that every level of approval carries a responsibility, thus the next approvers should have also been held liable. 3.11 The 2°d respondent further stated that she was dismissed under category 1 for an offence which was not dismissible. That category 2 offences warrant summary dismissal. 4.0 APPELLANT'S EVIDENCE 4.1 The appellant called Craig P. G Botha (RWl), the respondent's Investigator and Justin Chiwama the Employee Relations Manager (RW2). Their collective evidence was that they received information from the security department that there was a J7 cartel of en1ployees operating al Mindolo SV c1nd causing overspenr.ling. In their investigar.ions they identified transactions for procun.:n1ent of mine equipn1ent fron1 lv1indolo SV that were split lo avoid approval levels, contrary to policy o:~9. Several ernployees including the respondents who were baser. I in the supply departn1enl were n1entioned as being part of the cartel and they were requested to exculpate then1selves ,vhich they did. Their supervisors were nol satisfied with the exculpatory letters and proceeded to organize a disciplinary hearing. After the disciplinary hearing, the respondents were dismissed. They were informed of their right of appeal. They appealed but the sanctions were upheld. 4.2 The 1 sl respondent was involved in the procurernent of two trolleys, tlow rneters anr.l flo,~· meter 1nonitors. T,l\lo of the transactions ,vcre approved by a :\Ir. Patrick M,~·cngc in a manner that avoided authority levels. Four requisitions were raised for the purchase of two cabinets anr.1 the total amount was about $ l 9,500 bu l they were split. That the 1°' respondent also played a role in the procuren1ent of electric magnetic flo,v n1elers and lvlr. Ivlwenge approved each transaction \vhich was J8 below $10,000. She was also involved in the purchase of a flow meter monitor and an electric cabinet. 4.3 The 2nd respondent was involved in the procurement process of the trolley jacks, a transaction worth $19,000 which was above Mr. Mwenges level of approval. She was also involved in the procurement of electromagnetic flow meters and flow meter monitors that had a total value above $25,000 and two trolley cabinets transaction worth over $54,000, electrical tools in cabinet worth about $45,500. All this was done in violation of policy No. 039, the delegated approval policy which prohibits splitting of transactions to avoid approval levels. 4 .4 As regards the respondent's claims that requisitions were from the end user and they merely passed them on to their superiors, RW 1 stated that even if requisitions came in a default form, they had a duty to scrutinized the transactions and flag any suspicious transactions and bring the issue of splitting orders to the attention of their supervisor. 4.5 As regards the respondents claim that they were not aware of policy No. 039 as it did not exist at that time, the appellant stated that the policy existed before the respondents' dismissal and it had been circulated to all employees through email and J9 departmental heads. That the sanction for breaching policy no.039 was dismissal. 4.6 With regards to the notice to produce dated 12th October, 2020, relating to transfer of employment in the year 2000, the appellant averred that accrued benefits under ZCCM were computed and those with a positive balance had their money put in trust. That the 1 sl respondent's terminal benefits were in the negative. That both respondents were paid for their accrued leave days. 4. 7 Further evidence was that since the mode of exit for the respondents was summary dismissal, the respondents were only entitled to accrued leave days and not 2 months' pay for every completed year of service which the 1st respondent was claiming. 4.8 In cross examination, RW2 admitted that the respondent's administering officials did not state the reasons why the appeals were dismissed contrary to clause 8.4 of the Disciplinary Code and that he had no evidence that policy 039 was circulated to all employees. ,J\O 5.0 DECISION OF THE LOWER COURT 5.1 The learned trial Judge made the following findings of fact: a) The 1st respondent was an employee of the appellant holding a position of senior buyer and had worked for the company for 18 years. b) That she had worked for ZCCM for 12 years before being transferred to the appellant in the year 2000. c) That the 2nd respondent was also an employee of the appellant in her capacity as buyer for seven years. d) Both respondents had never been a subject of any disciplinary process before. e) Both respondents were dismissed summarily after a disciplinary hearing for the offences of non-compliance with established procedure/standing instructions and substantial/ poor performance. f) The process of purchasing or buying anything ,llfas initiated by the end user and it ended up with an approval by the relevant authority. g) That the two respondents were not end-users and so they could not initiate any transaction. Jl 1 h) That the respondents did not have authority to approye any transactions. i) The ,Judge further found that the respondents' role in the purchasing systern of their auto111ated workf1ow chart \,'as merely to review and escalate the requisitions to their superiors, the Purchasing Superintendent for further review and approval. They were not initiators of split transactions. That initiating of any purchase transaction was done by the requisition End-User Departn1ent. j) The court accepted the evidence that the respondents did not have authority to either approve a requisition to becon1e an order or send it back to the initiator if it had a proble111 as the syste111 ,vas designed in such a way that it ,vould detect flaws in the processing of requisitions. k) The court observed that the end users ,vho initiated the requisitions had a rnanager who verified the requisitions. This n1eant that if the respondents noticed sornething wrong they could not alter the requisition or send it back since the person ·who escalated it from the end-user ·was Jl2 their superior (Manager at the End-User level) and this would amount to insubordination. The only \vay was to escalate it to their Manager who would then raise issue with his line manager. l) The ,Judge therefore found that the respondents could not be charged with initiating split transactions (which was done by the end user department) or even approving them as this was the function of their Manager and other Superiors. m)The ,Judge also found that Policy no. 039-Delegated Approval Authorization Policy, on which the respondents were charged was not made available to the respondents as there was no evidence to show that it \Vas communicated to all employees. n) The Court further found that there was evidence of split transactions which were verified and processed in part by a Jacqueline after the respondents had been charged for a similar offence. o) On this basis, the Judge found the dismissals to be unfair. J13 p} \Vith regard to the clailn for wrongful disrnissal, the ,Judge found that the appellant followed the disciplinary procedure and gave the respondents an opportunity to be heard. They also exercised their right to appeal to the highest level available although the disrnissals were upheld. q) As regards the respondents' position that the punishments meted were too severe, the Judge observed that the administering officials at the appellate levels did not give reasons when handing down their decision contrary to clause 8.4 of the Disciplinary Code which requires the achninisr.ering official to give reasons in writing for dismissing an ~111ployee. r) The ,Judge further found that the charges leveled against r.he respondents fall under categories 1 and 2 of the Disciplinary Code \\'hich carry the penalties of severe and final warning respectively. He opined that the offences under these categories should not have attracted disniissals. s) The Judge went on to consider certain provisions of the Disciplinary Code and found that the appellant. did not ,J 1-1 take into account the following factors in dismissing the respondents: (a) the categories of the offences leveled against the respondents did not warrant summary dismissal but only severe and or final warnings (b) the respondents good record of service (c) the respondents were first offenders (d) they never had any warnings (e) the 18 and 8 or 7 years of respective long diligent service (f) the untrue allegation of loss suffered by the respondent merely by processing requisitions (g) what the respondent processed, was in line with their duties v,hether they were split transactions or not. They did not initiate or approve the requisitions or orders. 5.2 Having found that the guidelines in the code were completely ignored to the detriment of the respondents, the Judge held that the dismissals were wrongful. He \Vent on to make the following Orders: 1. That the 1st respondent who had worked in the industry for 30 years be deemed to have retired at the appropriate age and that she be paid her retirement package. Jl5 11. This remedy was unavailable for the 2 nd respondent whom the ,Judge considered to be still young. iii. Since the dismissals were found to be both wrongful and unfair, the Judge granted the 2nd respondent an aggregated award of damages for wrongful and unfair termination of twenty-four months basic salary. The same to be paid as at last pay slip. 1v. The Judge further granted accrued terminal benefits to the 2 nd complainant. v. Interest was awarded on the judgment sums at the Bank of Zambia short term deposit rate from date of Notice of Complainant being the 5Lh October, 2018 to date of judgment and thereafter at 6% to date of complete settlement as well as costs. v1. The Judge declined to order re-instatement. 6.0 GROUNDS OF APPEAL 6.1 As earlier stated, this is an appeal against the lower court's judgment. It is based on 5 grounds of appeal. J16 1. That the court below erred in law and fact when it declared that the respondents were unfairly/wrongfully dismissed from their employment (page J 31 line 17-18 and page J36 line 3-4 of the judgment) because in assessing and evaluating the evidence, the court below failed to take into account some matters which it ought to have taken into account. 2. The court below erred in law and fact when it declared that the 1st respondent be deemed to have retired at the appropriate age of the retirement and that the calculations .of the retirement package do include the break in service as a result of these proceedings (page J36 line 15-20 of the judgment) because the dismissals have not been nullified and further the declaration contradicts the courts position on page J38 line 1-3 ofthejudgment refusing to grant an order of reinstatement. 3. The court below erred in law and fact when it declared that the 1st respondent be deemed to have retired at the appropriate age of retirement and that Jl7 the calculations of the retirement package do include the break in service as a result of these proceedings {page line 15-20 of the judgment) because such a declaration or order amounts to awarding a pension benefit for a period that the 1st respondent has not worked thereby infringing the law against unjust enrichment. 4. That the court below erred in law and fact in awarding aggregated damages of twenty four (24) months basic salary in respect of the 2 11d complainant (page J36 line 21-24 and J37 line 1-4 of the judgment) without specifying the compelling circumstances to warrant an award in excess of the normal measure of damages of one month in lieu of notice in line with the conditions of employment and servi.ce. 5. That the court below misdirected itself in law and fact in ordering that the 2 nd complainant be paid all that had accrued as at the point of termination of her employment (page J37 line 5-10 of the judgment) without taking into account the evidence on record indicating that the 2 nd complainant was paid accrued ,J 18 terminal benefits on dismissal in line with the provi.sions of section 26 of the Employment Act Chapter 268 of the Laws of Zambia as amended by the Employment (Amendment) Act No. 15 of 1997. 7.0 APPELLANT'S HEADS OF ARGUMENT 7 .1 During the hearing of the appeal, the appellant relied on the heads of argument filed on 1 Srh March, 2021. In arguing ground I, counsel submitted that the respondents did not dispute processing the split transactions at the disciplinary hearing or at trial. In fact, during cross examination, the respondents admitted to processing the split transactions referred to. During the disciplinary proceedings and at trial, the argument by the respondents was that they were not aware of Policy No. 039. That, the position of the administering official was that, "it was incumbent on the employee to familiarize herself v11ith the policies that exist "IA-'i.th the job she was executing. 7 .2 Counsel submitted that the trial Judge in accruing the decision that the dismissals were unfair did not take into account the J19 evidence on record in the Senior Staff Conditions of Employment and Service which provided as follows: "Policies and Procedures Unless otherwise specified in this letter while in the service of MCM, the employee will be subject to the company's policies and procedure in accordance with Senior Staff Conditions of Employment and Service as amended from time to time. It is the employee's responsibility to ensure he is aware of all such policies and procedures." 7.3 That the court below did not take into account the offer of employment to the 2 nd respondent which had a similar provision under clause 8 appearing at 142 of the Record of Appeal which states as follows: " ........... it is the employee's responsibility to ensure that one is aware of all such policies and procedures." 7.4 Counsel submitted that the respondents were bound by the terms and conditions of their contracts of employment and therefore had the responsibility to ensure that they were aware J20 of policy No. 039. He relied on the case of Rosemary Ngorima and 10 Others v Zambia Consolidated Copper Mines Ltd1 where it was held that; "In an employer-employee relationship the parties are bound by whatever terms and conditions they set out for themselves." 7.5 Counsel further contended that the court below misapprehended the facts when it held that: '"the complainants could not by any stretch of practice and procedure in the processing of transactions, be guilty of initiating and approving the flawed transactions or any such transactions". That this was a misdirection because the respondents were not accused of initiating or approving the transactions. The evidence on record indicates that the respondents were accused and found guilty of processing split transactions contrary to the spirit of policy No. 039. 7.6 As regards the issue of wrongful dismissal, counsel submitted that the court below in concluding that the dismissals were wrongful, did not take into account the fact that the disciplinary appeal proceedings were recorded in writing and the reason for dismissing the appeal were given at the hearing of the appeal as J21 per the minutes of the appeal case for the 1 sL respondent which appear at pages 258-259 of the record of appeal. The reasons for dismissing the appeal for the 2 nd respondent were given at the hearing of the appeal in the minutes at pages 260-261 of the record of appeal. 7. 7 That the veracity of the minutes of the disciplinary proceedings has not been challenged by the respondents. Thus, the respondents were aware of the reasons for dismissing the appeals. 7.8 Counsel contended that the court below failed to take into account the fact that the administering official at the disciplinary hearing gave reasons for handing down the penalty of summary dismissal to each of the respondents as per the minutes of the case hearing at pages 252-254 of the record and the summary dismissal letters. That if the court below had taken into account the minutes of the disciplinary proceedings and the provisions of section 4.1 of the Disciplinary Code, it would have arrived at a different conclusion consistent with the evidence on record. 7. 9 Counsel urged us to allow the first ground of appeal considering that the court below found that the procedures in discipling the J22 respondents were properly followed and that they were heard by properly constituted disciplinary bodies. 7 .10 On ground two. it was submitted that the court below· did not declare the dismissals null and void. Thal although the respondents did not seek the relief of rcinstatcrnenl, the court of its own volition declined to grant. an order of reinstatement. 7. I I It was submitr.ed that on this basis. the declaration that the 1st respondent be deemed to have been retired at the appropriat.e age of retirement and that the calculations of the retirement package do include the break in service as a result of these proceedings was a 1nisdircction. 7 .12 On ground :3, it was subrnilted that the award of pension benefits to the 1st respondent for a period she did not work for amounts to unjust. enriclunent. as per the case of Kitwe City Council v William Nguni2 . Vt/e were urged to set aside the award. 7. 1:3 On the 4:t: ground, counsel submitted t.hat the normal rncasure of damages in unfair/wrongful dismissal cases should be the usual salary for the notice period unless there arc compelling circu1nst.ances to warrant an increased award. In support of this submission, we were referred to the cases of Konkola J23 Copper Mines Pie v Greenwell Mulambia3 and Swarp Spinning Mills v Chileshe4 . 7.14 It \Vas submitted that in this case, clause 1.2.1 (b) & (c) of the Senior Staff Condition of Service which applied to the respondents provided for one month's pay in lieu of notice for termination by either party. Counsel submitted that since the 2 nd respondent did not explain to the court below any special or peculiar circumstances to take her case out of the realm of ordinary award of compensation, there was no basis for awarding her 24 months' salary as compensation especially when one considers the finding of the court below that she was "still very young and far from the age of retirement." 7.15 In support of ground five, counsel referred to section 26 of the Employment Act, Chapter 268 of the Laws of Zambia \vhich provides that upon summary dismissal, an employee is entitled to payment of wages and other allowances due at the date of such dismissal. 7.16 Counsel further submitted that for the dismissal under clause 12.8.3 of the Senior Staff Conditions of Employment and J24 Service, there is no compensation for dismissal other than commutation of accumulated leave days. 7.17 That according to the termination pay statement for the 2nd respondent, the 2 nd respondent was paid accrued ,II/ages, leave pay and housing allowance upon dismissal, ,vhich she confirmed in her evidence. Therefore, the order by the court below that the 2 11d respondent be paid all that had accrued as at the point of termination of her employment would result in duplicity of payments and offend the legal principle against unjust enrichment. 8.0 RESPONDENT'S HEADS OF ARGUMENT 8.1 During the hearing of the appeal, the respondents relied on the heads of argument filed on 101b June, 2021. In response to ground one, counsel for the respondent contended that the court below was on firm ground ,'1-'hen it declared that the respondents were unfairly /wrongfully dismissed from their employment. He referred to Halsburys laws of England Vol. 16, 4 th Edition at paragraph 335 which states that: ,/25 "The key consideration in cases of unfair dismissal is the reasonableness of the employer's decision to dismiss and not the injustice caused to the employee." 8.2 Counsel argued that it was unfair for the appellant to have charged and dismissed the respondents for abrogating or violating clause 4 .1 of Policy No. 039 when the respondents were not the ones that divided the transactions in issue. That the respondents were not even initiating any transaction within the appellant company. Therefore, other than the fact that the respondents were not aware of the said policy, the respondents had established before the lov,er court that they were not responsible for initiating the split requisitions in issue as the department responsible for raising or initiating the said transactions is and was the user department (in this case the Engineering Department). That the respondents merely processed the already initiated split transactions authorised by the end user manager in accordance with the Purchasing Procedure Policy (for items that are not stock coded). That the respondents' role in the purchasing system or automated work flow chart v,as merely to review and escalate the requisitions to J26 , their superior, the Purchasing Superintendent, who would further review and approve the transactions. The respondents did not have any authority to either approve a requisition to become an order or send back the requisition to the initiator in case it had an error. If transactions were initiated in abrogation of any company procedure or policy, only their superior had the authority to reject the processing of such transactions. 8.3 Counsel for the respondent stated that, it was also proved before the lower court that the practice of splitting transactions was common amongst the appellant's employees. 8.4 That even assuming that the respondents were aware of clause 4.1 of the said policy, they could not under the circumstances be held to be guilty of abrogating the policy. Counsel further submitted that the respondents were not aware of the existence of the policy and dismissing them for that was unfair. The case of lnterfoto Pictures library v Stileto Visual Programmes Limited5 , was cited in furtherance of the argument that the appellant's policy in issue was not communicated in the established manner. J27 8.5 To counter the argument by the appellant that the disciplinary appeal proceedings were recorded in writing and the reason for dismissing the appeals ,vere given, the respondents' counsel submitted that the lower court was on firm ground when it held that the dismissals were wrongful as administering officials did not give reasons when handing dov.111 their decision. To fortify this submission, he referred to clause 8.4 of the Disciplinary Code which states that: "Whenever an appeal is determined, the administering official shall state in writing reasons for dismissing or upholding the appeal." 8.6 Counsel pointed out that, the letters in vvhich the respondents' appeals were dismissed appear on pages 126,129,221 and 225 of the record of appeal. In those letters the administering officials did not state the reasons for dismissing the appeals as required by the Disciplinary Code, That the reasons were supposed to be indicated in the letters sent out to the respondents and not the company minutes. Counsel contended that the minutes referred to by the appellant, are the appellant's own documents and cannot be used as a point of reference with ,.128 respect to the requirement of informing the respondents of the decision to dismiss their appeals in writing. Counsel further pointed out that the minutes referred to by the appellant were not even recorded by the administering officer as required by the said Code and were only seen by the respondents at the time when they had instituted the action. 8.7 Counsel further submitted that the failure by the appellant to follow the procedure in the Disciplinary Code rendered the dismissals wrongful. To support this submission, he referred to the High Court case of Caroline Tomaidah Daka v Zambia National Commercial Bank Limited PLC6 , to persuade us that as the appellant failed to take into account the laid down factors that should have weighed in favour of the respondents, they were not guilty as charged. 8.8 Counsel further made reference to clauses 4.1, 2.6.5, 4.10, 4. 10. 2 and 4. 10.3 of the Disciplinary Code to submit that other than alleged seriousness of the offences in this matter and the fact that the respondents herein were senior staff employees who were supposed to lead by example; the administering officials handling the first hearing for the respondents were J29 required to take into account the following factors; (a) the respondents were first time offenders (b) the respondents never had sanctions pertaining to warnings before they were charged and dismissed for the offences leading to this case. (c) the good service record that the respondents had (d) the 18 and 7 years respective long service that the 1 •t and 2nd respondents diligently served the appellant. 8. 9 In addition, the following facts could have been taken into account by the administering official; (a) the categories of offences levelled against the respondents did not warrant summary dismissal but merely severe and final warning. (b) the respondents good record of service; (c) the false allegation by administering officials that the respondents case was aggravated by the extent of the loss suffered by the appellant company when there was no loss suffered by the respondents processing of split transactions. (d) the respondents processing of the split transactions was in accordance vvith their duties and prescribed J30 auto111ated ,;,:vork Ocnv systen1. \Ve were therefore urged to uphold the lo\,rer court's decision. 8.10 To counter ground 2, counsel sub111itted that a declaratory order that the disn1issals were unfair and ,;,:vrongful has the same effect as nullifying the dismissals. Counsel further sub111itted the lower court's declaratory order that dis111issals \Vere ,vrongful and unfair does not contradict the refusal to grant an order of reinstaternent. This is because reinstate111ent is granted under exceptional circun1stances, as guided by the Supreme Court in the case of Zambia Railways Limited v Oswell Joseph7 . 8 .11 As regards the appellant's argun1ent that the effective cl ate of separation re111ains 14::, August. 2018, it \Vas sub1nitted that tr1e l ,: respondent was 50 plus years old, due for early retirernent and entitled to the sarne benefits as an employee on nonnal retirement. Had it not been for the unfair and ,;,vrongful dismissal, the l st respondent. could have clocked 55 years whilst in the employ of the appellant. That ,;,vith or without reinstatement, the l st respondent qualified to be deemed retired J31 and to be entitled to a retirement package and the lower court correctly exercised its authority to deem her retired. 8.12 Grounds 3 and 4 were argued together as follows: with regard to the lo\ver court's order that the 1 sc respondent be deemed retired, counsel submitted that the isc respondent worked for the appellant for 18 years after the transfer from ZCCM to the appellant in 2000. She was more than 50 years old at the time of her dismissal and had qualified for early retirement as per the clause on early retirement in the Senior Staff Conditions of Employment and Service. Further that at 50 plus years the 1st respondent has no prospects of finding another job as she had grown old. That there were justifiable reasons and compelling grounds for the lower court to have deemed the I st respondent as retired and entitled to pension benefits. Therefore, the issue of unjust enrichment does not arise. 8.13 With respect to the award of damages, reliance was placed on the case of Zambia Airways Corporation Limited v Gershom B. B Mubanga8 . It was submitted that although the 2 nd respondent was wrongfully and unfairly dismissed, an order for reinstatement would not have been appropriate as the work ,JJ2 relationship with the appellant woulr.l not have been the same. That the said award granter. I to the 2'"' respondent is nor excessive considering the circurnstances under which the 2 r.d respondent ,vas r.lis1n issed, the nature of her job and her future prospects of finding another job ,vhich have reduced due to her dented reputation resulting frorn her wrongful and unfair dismissal. Therefore, the lower court was on finn ground to award her 24 months basic salary as darnages for v,1rongful and unfair dismissal. 8.14 In arguing ground . S, counsel submitted that far and above the wages and leave days accrued and paid to the 2 nd respondent., she is entitled to 1 n1onth's pay for each year served as compensation for loss of her employ1nent following the lower court's order that her dismissal ,vas wrongful 1:u1d unfair. That this position if supported by clause 12.2. J of the Senior Staff Conditions of Employment and Service. 8. 15 Counsel further argued that the issue of unjust enrichment or duplicity of payment does not arise under the circu1nstances. That whatever amount has already been paid for the 2 nd respondent ought to be deducted from her dues. J33 8.16 We were urged to dismiss the appeal and uphold the decision of the lower court with costs to the respondents. 9.0 ORAL ARGUMENTS 9.1 Counsel for the appellant Mr. lmonda raised an issue on a point of law concerning the lower court's order condemning the appellant to costs. He argued that the order for costs was not in accordance with Rule 44 of the Industrial Relations Court Rules. 9.2 Counsel for the respondent, Mr. Libakeni, contended that the appellant was attempting to sneak in a ground of appeal disguised as a point of law. He went on to cite cases to the effect that you cannot raise a ground of appeal in the heads of argument. He submitted that the proper procedure to bring in a ground of appeal is to amend the memorandum of appeal. 10.0 ANALYSIS AND DECISION 10.1 We have duly considered the record of appeal and the arguments made by counsel on behalf of the parties concerned. I 0.2 The issue raised in ground one is that the court would not have found that the respondents' dismissals were ,vrongful/unfair if J34 it had taken into account certain facts. The factors which counsel for the appellant contends were not taken into consideration by the lower court include {a) the respondents never denied processing split transactions contrary to Policy No. 039. {b)That it was the responsibility of the employee to be aware of all such policies and procedures as envisaged in the Senior Staff Conditions of Employment and Service and the offer of employment to the 2 nd respondent; (c) the administering officials gave reasons for dismissing the appeals as can be seen in the minutes of the disciplinary proceedings. 10.3 In the case of Eston Banda, Edward Dalitso Zulu v. The Attorney General9 , the Supreme Court rehashed its holding in Care International Limited Supra that the mode of an employee's dismissal or exit from employment will determine \Vhat relief, if at all, they would be entitled to. They stated further that: " .. there are only two broad categories for dismissal by an employer of an employee, it is either wrongful or unfair. 'Wrongful' refers to a dismissal in breach of a relevant term embodied in a contract of employment, which relates to the expiration of the term for which the employee is engaged; whilst 'unfair', as ,lJ5 stated at paragraph 757 of Halsbury's Laws of England, refers to a dismissal in breach of a statutory provision, where an employee has a statutory right not to be dismissed." 10.4 With the above authority in mind, we note that the evidence on record shows that the respondents herein were dismissed for abrogating Policy No.039 (the Delegated Approval Authorization) which under clause 4 .1 prohibits combining transactions or splitting transactions. The said clause provides as follows; "Dividing a commitment or transaction into two or more parts to evade a limit of authority is prohibited and is a violation of this policy. This policy shall be interpreted broadly so that a series of reasonably related transactions shall be considered as a single transaction for purposes of determining approval and authority levels required by this policy." 10.5 The respondents did not dispute processing the split transactions but claimed that they were unaware of the said policy. They claimed that they only became aware of it through the charge letters dated 1 sl August, 2018. ,J36 I 0.6 \Ve take the view that there was no proof that they were aware of that policy prior to being charged with the offences. The respondent's evidence was that the policy was con1municated to the en1ployees by e-tnail but no such e-mails \Vere produced. This created doubt in the n1ind of the trial Judge and we cannot fault. hi111 for that. 10. 7 Further, even if they were a\vare of the Policy, it was nut in dispute that the respondent8 were not init.iators of the split transactions as the requisitions were initiated by the End-User Departtnent. Their role in the purchasing systen1 was merely tu review and escalate the requisitions to their superiors. They also had nu authority lo alter a requisition or send it back to the initiator. The respondent's evidence that even after their dis111issal, split transactions \Vere still being processed, <lid not justify the abrogation of the said policy. Ho\vever, the trial Judge was under the circumstances on finn ground to hold that they were unaware of the policy. 10.8 Based on the above evaluation of the evidence, \Ve uphold the trial . Judge's finding that the disrnissals \Vere unfair. l 0.9 As for the question of wrongful disrr1issal, the trial Judge found that the disciplinary procedures were followed in that the ,J37 respondents \l\!ere charged and accorded tl1e rights to be heard. They also had opportunity to appeal to the highest level available but their appeals were dismissed. That, the adn1inistering officials at the appellate levels did not give reasons ·when handing do·wn their decisions contrary to clause 8.4 of the Disciplinary Code which requires the officials to give reasons in writing whenever they disrniss an employee. 10.10 The minutes of the disciplinary hearing appearing on pages 252 to 253 and 255 to 257 of the record of appeal show the reasons given for dismissing the 1 s: and 2"d respondent respectively and for dismissing their appeal. The reasons given for disrnissing the appeal \'-'ere in both cases lack of new evidence. Vt/e are of the considered view that contrary to the trial Judge's findings, reasons were given for the respondents' dismissals at both hearing and appeal stage. 10. 11 Further, the ,Judge found that the respondents were charged under categories l and 2 of the Disciplinary Code where the penalty is a severe warning or final warning but in this case, the respondents were dismissed without considering the guidelines in the Disciplinary Code. For example, the ,Judge rightly found that the respondents were charged under J38 categories 1 and 2 of the Disciplinary Code which carry the punish1nenr of severe and final warnings respectively. Ho\vever, they ,vere dismissed. Therefore, the appellant did not exercise its po\ver in due forrn as the respondents records of service \Vere excellent. 10 .12 For the foregoing reasons, \Ve find that ground 1 has no 1nerit and it fails. 10.13 Grounds 2 and 3 of the appeal will be tackled together as they are related. Both grounds address the issue of the lo\ver court deen1ing the l st respondent to have retired at the appropriate age and entitled to pension benefits. 10. 14 We agree with counsel for the appellant that the respondents did not seek a declaration that the dismissals be declared null and void. However, by holding that the disrnissals were \\Tongful and llnfair. the Judge was essentially saying that they both should not have been dis1nissed. The in1port of this is that the effective date of separation re1nains 14·.t: August, 2018. J 0. l5Alr.hough the practice of the courts in Zambia is lo award dan1ages as a rernedy in cases of,vrongful and unfair dis1nissal, the court have, in sorne instances deemed co1nplainants to have been retired with full benefits and rightly so. In the case J39 • • of Zambia Consolidated Copper Mines v Matalern, the Supreme Court upheld the decision of the Industrial Relations Court to deem the respondent as having retired with full benefits from the date of separation. The Supreme Court found such an order justifiable upon considering that the Industrial Relations Court has powers under Section 85 of the Industrial and Labour Relations Act, in matters of wrongful and most unwarranted termination of employment, to exceed the normal measure of damages at common la,v in order to do substantial justice. 10.16 In this case, l si respondent's age was over 50, she had served the appellant for 18 years. She qualified for early retirement as per the conditions of early retirement in the Senior Staff Conditions of Employment and Service. If she had retired early she ,vould have been entitled to benefits as though she had retired normally. Considering the above circumstances, the lo,ver court was on firm ground in exercising its statutory authority of doing substantial justice to deem the 1 si respondent as retired. 10.17 In light of \vhat we have stated above, the appellant's argument that the 1st respondent is only entitled to what she had worked J40 • for because a,varding her what she had not ,vorked for would amount to unjust enrichment cannot stand. 10.18 For the foregoing reasons, we find merit in grounds 2 and 3 and allow the same. 10.19 Grounds 4 and 5 'Nill also be dealt 'Nith together as they are interrelated. The issues raised under these two grounds of appeal are that there was no basis of a,varding 24 months basic salary to the 2°d respondent and ordering that she be paid her accrued benefits without considering her evidence that she was paid accrued terminal benefits. 10.20 As regards the award of 24 months basic salary to 2 nd respondent, the position of the la\v is clear that the normal measure of damages for wrongful dismissal is the notice period unless there are compelling circumstances to warrant an award in excess of the normal measure. Section 26 of the Employment Act, Chapter 268 of the Laws of Zambia as amended by Employment (Amendment) Act No.15 of 1997 reads: "Where an employee is summarily dismissed, he shall be paid on dismissal the wages and other working or . MI • .. other allowances due to him up to the date of such dismissal.,, 10.21 In the cases of Konkola Copper Mines Plc v. Greenwell Mulambia3 and Swarp Spininning Mills v Sebastian Chileshe4, the Supreme Court clarified that the normal measure of damages applies and will normally relate to the contractual length of notice or the notional reasonable notice where the contract is silent. However, the normal measure of damages may be departed from under special circumstances. 10.22 The grounds on which the 2 nd respondent was dismissed from employment, the nature of the job, the low prospects of finding employment elsewhere, the evidence that at the time of trial she was still unemployed, are all special circumstances to warrant the award of 24 months' salary as damages for unfair dismissal. 10.23 As regards to the other lower court's order that the 2nd respondent be paid all that had accrued to her as at the point of dismissal, the appellant's contention is that under Section 26 of the Employment Act1, there is no compensation for summary dismissal and since the 2 nd respondent was paid all J42 her accrued benefits, she would be unjustly enriched if paid damages. 10.24 The respondent's counsel has argued that the 2nd respondent is entitled to 1 month's pay for each year served on pro rata basis as compensation for loss of her employment in accordance to clause 12.2.3 of the Senior Staff Conditions of Employment and Service. The evidence on record is that the 2nd respondent was paid accrued wages, leave pay and housing allowance as shown by the statement appearing on page 345- 346 of the record of appeal. However, we find no justification to tamper with the lower court's decision as what has already been paid can be taken into account before the compensation is paid. In that way, the issue of unjust enrichment would be averted. 10.25 The appellant's counsel informally raised the question whether the lower court was on firm ground to grant costs to both respondents in view of Rule 44 of the Industrial Relations Rules. 10.26 The respondent's counsel's spirited argument was that the appellant attempted to sneak in a new ground of appeal without obtaining leave to amend the Memorandum of Appeal J43 and therefore this issue should not be determined by the Court. Be that as it may, the appellant's spirited argument that the question of costs is a question of law which can be raised at any stage of the proceedings is also acceptable. See the case of Nevers Sekwila Mumba v Mukabi lungu 14 . 10.27 We hold that this is indeed a question of law. Rule 44 of the Industrial Relations Court Rules has been interpreted in a plethora of authorities including Amiran Limited v Robert Bones 11and Zambia National Commercial Bank v Joseph Kangwa 12 • 10.28 In the case of Kansanshi Mining Pie v Mathews Mwelwa 13 we referred to the Supreme Court Judgment in Amiran Limited case supra and set aside an order for costs which was improperly made. We hasten to point out that in the Kanshanshi Mining Pie case, the issue of costs was raised as a ground of appeal. In the case before us, for reasons we have already stated, we shall proceed to determine the issue even if it is not a ground of appeal. 10.29 Rule 44 (1) of the Industrial Relations rules provides as follows: J44 • "(1) Where it appears to the Court that any person has been guilty of unreasonable delay, or of taking improper, vexatious or unnecessary steps in any proceedings or of other unreasonable conduct, the Court may make an order for costs or expenses against him." 10.30 The case authorities mentioned in paragraph 10.28 hereof are to the effect that in cases before the Industrial Relations Court, costs can only be awarded against a party if such a party is guilty of unreasonable delay, or of taking improper, vexations, or unnecessary steps in the proceedings or of other unreasonable conduct. 10.31 In casu, the lower court granted costs to the respondents without considering Rule 44(1) of the Industrial Relations Court Rules and no reason was given for condemning the appellant in costs. J45 • • 10.32 We are of the firm view that the lower court erred in awarding costs to the respondents as there is no indication on record that the appellant was guilty of any unreasonable conduct in the proceedings. Consequently, the said order for costs cannot stand and it is hereby set aside. 11.0 CONCLUSION 11.1 In sum, the appeal is dismissed for lack of merit. However, we order that each party shall bear its o,vn costs in the court below and here. C. K. MAKUN COURT OF APPEAL JUDGE ......... .................••......... P. C. M. NGULUBE COURT OF APPEAL JUDGE G~ ---> ......... r-~ ..... . N. A. SHARPE-PHIRI COURT OF APPEAL JUDGE