Moses Nkonde v The University of Zambia (2022/HP/1511) [2024] ZMHC 131 (20 March 2024)

IN THE HIGH COURT OF ZAMBIA AT THE PRINCIPAL REGISTRY HOLDEN AT LUSAKA (Civil Jurisdiction) 2022/HP/1511 BETWEEN: MOSES NKONDE AND THE UNIVERSITY OF ZAMBIA DEFENDANT BEFORE THE HONOURABLE MR. JUSTICE S. V. SILOKA IN OPEN COURT ON THE 20THDAY OF MARCH, 2024 - For the Plaintiff: Simbeye of Messrs. Melisa Legal I. Practitioners For the Defendant: Ms. Towela Nkoma - In-house Counsel, University of Zambia JUDGMENT CASES REFERRED TO: 1. Cheelo and 9 Others Vs Zambia Consolidated Copper Mines Limited (1999) S. C. Judgment No. 27 of 1999 (unreported). 2. Rosemary Ngorima and 10 Other Vs Zambia Consolidated Copper Mines (Appeal No. 97 I 200) (unreported). 3. Citi Bank Limited Vs Dudhia (Appeal No. 6 of 2022) 2023 ZMSC. 4. Zambia National Provident Fund Vs Y. N. Chirwa (1986) Z. R. 70. 5. Konkola Copper Mines Vs. Hendrix Mulenga Chileshe (2017) ZMSC 153. 6. Attorney General Vs Richard Jackson Phiri (1988-1989) ZR 12 (SC). 7. Zambia Electricity Supply Corporation Limited Vs David Muyarnbango (2006) ZR 22 (SC). / 8. Supabets Sports Betting Vs Batuke Kalimukwa (2019) ZMSC 27. 9. Vodaphone Limited Vs Miss Nicholson 9UKEAT/0605/ 12/SM) UKEAT/0057/ 13/SM). BOOKS REFERRED TO: 1. Halsbury)s Laws of England (4th Edition) at paragraph 19. 2. W. S. Mwenda and Chanda Chungu) A Comprehensive Guide to Employment Law in Zambia (University of Zambia Press) 2021 at page 244. 1.0 INTRODUCTION 1.1 This matter was commenced by way of Writ of Summons accompanied by a Statement of Claim dated 27th September, 2022. 1.2 The Defendant filed a Memorandum of Appearance and Defence on the 11th of October, 2022. 2.0 THE PLAINTIFF'S CASE 2.1 The Plaintiff's claim was for the following; (i) An Order for immediate payment of the sum of ZMWl,170,403.55 being the total outstanding emoluments. (ii) An Order that the proceedings before Adhoc Tribunal convened to hear and determine charges against the Plaintiff were a nullity. (iii) And arising from (ii) above the termination of the Plaintiffs employment was unlawful. (iv) An Order that the failure of the Defendant to communicate the Defendant's decision -J2- against the Plaintiff within 21 days of making the decision was illegal and unfair to the Plaintiff. (v) An Order for payment of damages for unlawful and unfair termination of employment to be assessed. (vi) An Order for payment of interest. (vii) An Order for payment of costs to the Plaintiff. (viii) Any other relief the Court may deem flt. 2.2 In his Statement of Claim, the Plaintiff informed the Court that he was employed as a Unionized Staff Technician III on a two-year contract, which was renewed four times until the fourth contractwas converted to permanent and pensionable employment with effect from 1 stMay, 2016. 2.3 Shortly after the contract was made permanent and pensionable the Plaintiff in the year 2017, applied for a 1 (one) year study leave to study at the Zambia Institute of Advanced Legal Education (ZIALE) which leave was granted after which he proceeded on leave. 2.4 After completing his course at ZIALE he resumed work but that six months after resuming work, he was suspended, alleging that he deserted his work place. 2.5 Following the charge, the Defendant by letter dated the 13th of February, 2019 convened an Adhoc Tribunal. 2.6 According to the Plaintiff the proceedings of the Tribunal spanned from the 13th of February, 2019 to November, 2019 but that he only learnt of the dismissal on the 19th of August, 2020. -J3- 2.7 The Plaintiff also told the Court that it was a requirement under the UNZAPROSU terms and conditions of service that where a matter pended for 3 months without being finally determined by Management or relevant disciplinary body at no fault of an employee, there would be a presumption that Management had no case against such an employee but the said condition was breached in respect of the proceedings against the Plaintiff as the proceedings went on for almost 10 months. 2.8 The Plaintiff also stated that according to the terms and conditions of service under the UNZAPROSU, upon conclusion of any disciplinary proceedings within 3 months, the Defendant was obliged to communicate the decision to the Plaintiff but that they did not do so in the case in casu. 2.9 The Plaintiff also claimed that after the expiry of the third contract, he was entitled to emoluments as follows: ZMW137,376.00 being gratuity, ZMWS,500.00 being baggage allowance, ZMWl 15.00 being passage and ZMW14,63.44 being leave days untaken, which sums altogether amounted to ZMW157 ,644.44 but to date the said emoluments have not been paid to the Plain tiff. 2.10 The Plaintiff claimed that at the point the fourth contract was converted to permanent and pensionable employment, the Plaintiff was entitled to the following prorated emoluments: ZMW282, 789.00 being gratuity, ZMWS,500.00 being baggage allowance, ZMWl 15.00 being passages and ZMW67,869.36 being leave days untaken altogether amounting to ZMW356,273.36 which -J4- emoluments the Defendant have not paid to the Plaintiff to date. 3.0 THE DEFENDANT'S CASE 3.1 In Defence, the Defendant admitted that the Plaintiff was employed as a Unionized Technical Staff, at the annual salary of K14,501,808.00 from the 1st June, 2004. That there are no other terms of employment that provided for a long service bonus for 18 months' salary for 12 months served. 3.2 According to the Defendants, the Plaintiff was awarded contracts and at the end of each contract he was to be paid gratuity as per page 48 of the Defendant's Bundle of Documents. 3.3 The Defendant also admitted that the Plaintiff's contract was converted to a permanent and pensionable contract with effect from 1st May, 2016; but that baggage and passage were not paid on the migration of the contracts and that the calculation of gratuity was dependent on many things including the number of years that one had served and that the condition of service do not permit for the carry over of leave days taken for a specified duration. 3.4 The Defendants also stated that despite the Plaintiff not being granted study leave, he proceeded to go on leave and deserted his work place from 27th September, 2017 to 4 th September, 2018. 3. 5 Further in their Defence, the Defendant denied paragraph 17 of the Statement of Claim and stated that the Plaintiff was placed on half salary as provided in his conditions of -JS- service following disciplinary charges that were leveled against him and that the Plaintiff was not entitled to a salary upon dismissal and that the Defendants do not owe the Plain tiff any salary arrears. 3. 6 According to the Defence the proceedings leading to the recommendation for the dismissal of the Plaintiff and indeed the dismissal in itself were lawful and fair and that the Plaintiff should not be awarded damages. 4.0 THE HEARING 4.1 When the Matter came up for hearing, the Plaintiff testified on his own behalf and called no witnesses. PWl relied on his witness statement (MN2) and Bundle of Documents (MNl). 4.2 In cross-examination, PWl explained to the Court that he applied for study leave to the Vice Chancellor as per letter dated the 27th of September, 2017 (see page 74) of MNl but was advised to apply for leave to the Registrar. 4.3 Following that guidance, the Plaintiff informed the Court that he then applied to the Registrar as per the letter dated 15th of November, 2017 (see page 75-87) of MNl. 4.4 According to the Plaintiff, the Registrar (Mr. Wamundila) upon receipt of his application letter orally granted him leave (see page 118) of MNl. 4.5 Further under cross-examination, the Plaintiff admitted that Mr. Zyambo (Chief Technician), Mr. Muzundu (H. O. D) and Professor Nalubamba (Dean of the School) denied having authorized him to proceed on study leave (see pages 101, 104 and 112) of MNl. -J6- 4.6 According to the Plaintiff, he was at ZIALE for 1 (one) year. 4.7 In further cross-examination, the Plaintiff told the Court that he was not communicated to, of the decision of the Tribunal. 4.8 In Re-examination, PWI told the Court that according to the proceedings of the Tribunal, the application was not supported. 4.9 In Defence, the Defendant called one witness namely Mubanga Mulenga Getrude aged 55 years, herein after called DWI. DWI relied on her witness statement herein after marked "MMGI" and also Bundle of Documents (MMG2). 4.10 It was DWI's evidence that according to Clause 17.3 and 17.5 of the Collective Agreement a matter must be heard within three months and a decision communicated within 21 days but that Disciplinary process only starts when an employee is officially charged and not when they are asked to exculpate themselves. 4.11 It was also DWI's evidence that this Matter was considered between 2019 and 2020 and that she was not part of the proceedings but that she was privy to the proceedings of the Tribunal as per documents filed. 4.12 DWI also under cross-examination told the Courtthat the Plaintiff was charged and that the Disciplinary Hearing commenced on the 28 th of February, 2019 and ended on 29t h of July, 2019 when the decision was rendered (see page 76 of MMG2). -J7- 4 .13 In further cross-examination DW 1 told the Court that in all the documents before Court it does not show that the Plaintiff delayed the proceedings. 4.14 In re-examination, DWl admitted that the Defendants owed the complainant money and that money was going to be paid to him on the first in, first out basis (FIFO). 4.15 In further re-examination, DWl stated that the exculpatory letter was dated 4 th July, 2018 and that the Plaintiff was charged in February 2018, a duration of 8 months. 4.16 In further re-examination DWl told the Court that an exculpatory letter was the first level of inquiry to find out if something happened. 5.0 ISSUES FOR DETERMINATION 5.1 The following are the issues that fall for determination. (i) Whether the Defendant owe the complainant the sum of Kl,170,403.55 being the total outstanding emoluments. (ii) Whether the proceedings before the Adhoc Tribunal Convened to hear and determine charges against the Plain tiff were a nullity. (iii) Whether arising from (ii) above the termination of the Plaintiff's employment was unlawful. (iv) Whether the failure of the Defendant to communicate the Defendant's decision against the Plaintiff within 21 days of making the decision was illegal and unfair to the Plain tiff. (v) Whether damages can be paid to the complainant for unlawful and unfair termination of employment. -J8- 6.0 DETERMINATION AND DECISION OF THE COURT 6 .1 At the close of the Matter, both Parties submitted WrittenSubmissions. I am grateful to both Parties for the submissions filed. The said Submissions will be referred to where necessary. 6.2 Before resolving the questions posed for determination , I have to state that though the Industrial Relations Court is the Court designated to hear Matters of employment and Industrial Relations , the High Court is not precluded from hearing such applications (see Cheelo and 9 Others Vs Zambia Consolidated Copper Mines Limited). (1l 6.3 As regards the standard of proof in such Matters, the burden of proof lies on he who asserts the existence of facts . The standard is satisfied on a balance of probabilities. 6.4 In Rosemary Ngorima and 10 Others Vs Zambia Consolidated Copper Mines, (2 ) proof on a balance of probabilities was interpreted in the following terms ; "It must carry a reasonable degree of probability but not as high as required in a criminal case. If the evidence is such that the Tribunal can say "we think it more probable than not" the burden is discharged, but if the probabilities are equal it is not." 6 .5 Further, in the Halsbury Laws of England (4th Edition) at paragraph 19, it is stated that, "a party having the legal burden of proof must (1) satisfy a Judge of the likelihood of the truth of his case by adducing a greater weight of evidence than his opponent, and (2) -J9 - adduce evidence sufficient to satisfy them to the required standard of degree of proof." 6.6 In resolving the issues identified, I will combine issue (ii) and (iv) together because in my view the issues are the same . The two will collectively be referred to as (i). (i) Whether the proceedings before the Adhoc Tribunal convened to hear and determine charges against the Plaintiff were a nullity and whether the failure of the Defendant to communicate the Defendants' decision against the Plaintiff within 21 days of making the decision was illegal and unfair to the Plaintiff. 6.7 The Plaintiff in their arguments argued that the Defendants breached Clauses 17 .3 and 17 .5 of the Collective Agreement by not hearing or determining the Matter within three months and also failed to communicate the decision of the Tribunal within twenty-one days (21). 6.8 In response , the Defendant submitted that the proceedings of the Adhoc Tribunal were not a nullity in that the Defendants followed the procedure in full as governed by the University of Zambia Staff Disciplinary and Grievance Code , Collective Agreement and Higher Education Staff Tribunal Rules . 6 .9 I have considered the arguments of both parties. Having examined the evidence on record( see page 96 to 161 of MN 1) , I have not found any ground on which I can falter the said proceedings of the Adhoc Tribunal. The Plaintiff was charged, then given time to exculpate himself and after -JlO- which he was given an opportunity to be heard while being represented by Counsel. 6.10 In my considered view, the issue of illegality centers on the allegation that the Defendants failed to complete the proceedings within 3 months and did not inform the Defendant of the tribunal decision within 21 days. 6 .11 Having looked at the record of proceedings of Tribunal I note that the hearing lasted for close to one year and during the hearing Counsel for the Plaintiff applied for an adjournment twice. With such applications made and allowed by the Tribunal, the sitting of the Tribunal was bound to exceed three months . However, the failure to complete the hearing within three (3) months does not make the decision of the Tribunal illegal. 6.12 Similarly, the assertion that the proceedings of the Adhoc Tribunal were a nullity for failure to communicate the decision within 21 days, lacks merit (see Citi Bank Limited Vs Dudhia. (3l 6 .13 In conclusion as regards the first issue to be resolved, both issues raised lack merit because the failure to conclude the Matter within 3 months and failure to communicate the decision of the Tribunal does not make the proceedings of the Tribunal a nullity (see Citi Bank Limited(3l case). 6.14 In any case, even if the Tribunal failed to follow the laid down procedure, the failure would not have made the decision of the Tribunal a nullity because the Plaintiff was dismissed for absenteeism whose punishment is a dismissal (see Zambia National Provident Fund Vs Y. N. Chirwa) (4l. -J11 - (ii) Whether the dismissal was lawful or wrongful. 6.15 The Plaintiff also argued that since the Adhoc Tribunal failed to follow procedure in dismissing him, the said dismissal was unfair and or wrongful. 6. 16 On the other hand the Def end an ts argued that the dismissal was fair and not wrongful because the Defendants followed the procedure as outlined in the Plaintiff's condition of service and the Staff Disciplinary and Grievance Procedure Code. 6 .1 7 Wrongful dismissal was discussed in Konkola Copper Mines Vs Hendrix Mulenga Chileshe(5l in the following terms; "The concept of wrongful dismissal has been widely accepted to mean that in considering whether dismissal is wrongful or not, it is the form to be considered rather than substance." 6.18 The learned authors of "A Comprehensive Guide to Employment Law in Zambia" , at page 244 explained that the focus on wrongful dismissal is 'how' the dismissal was carried out. Further on page 245 , they state that where a dismissal is carried in a manner contrary to the procedure for dismissal in the contract of employment, such conduct would constitute wrongful dismissal. The breach of contract for employment may take the form of flawed disciplinary process (see Attorney General Vs Richard Jackson Phiri(6l and Zambia Electricity Supply Corporation Limited Vs David Muyambango(7l). -J12- 6.19 As regards unfair dismissal, the learned authors of "A Comprehensive Guide to Employment Law in Zambia", on page 241 , unfair dismissal is defined as dismissal that is contrary to the statute or based on an unsubstantiated ground. Further, that a Court in reaching the conclusion that the dismissal was unfair, will look at the substance or merits to determine if the dismissal was reasonable and justified. Further, on page 242, the learned authors explained that unfair dismissal occurs when an employee is dismissed without a valid reason. 6.20 The Supreme Court in the case of Supabets Sports Betting Vs Batuke Kalimukwa(8 ) held that unfair dismissal is dismissal that is not supported by relevant facts. Therefore , if a valid reason is given but it is unsubstantiated, such a dismissal would be unfair. 6 .21 In connection to the above, I find persuasive , the English case of Vodaphone Limited Vs Miss Nicholson. (9 ) According to this case, a Court should look at the reason for dismissal as it was determined by the evidence and then proceed to ask itself pertinent questions such as: what did the claimant do or fail to do that caused the employer to dismiss him; and was it fair for the employer to dismiss for that reason?. After establishing answers , the next question would be, whether the conduct established in respect of the given facts after a reasonable investigation was such that a decision to dismiss fell within the range of reasonable responses . -J13 - 6.22 Analyzing the facts in the light of the law, it is my considered view that the dismissal was not wrongful because the Defendants followed the procedure 1n dismissing the Plaintiff herein. As the record shows, the Plaintiff was subjected to the disciplinary procedure in full. In the case in casu, even if the procedure could not have been followed, the dismissal could not have been unfair (see Zambia National Provident Fund Vs Y. N. Chirwa)(4l. 6.23 In the same vein, it is my considered view that the dismissal was fair because the employer validly dismissed the Plaintiff for absenteeism which was supported by evidence(see Supabets Sports Betting)(8l. The Plaintiff herein having applied for leave in writing, should have also gotten written permission allowing him to go to ZIALE. Failure to obtain permission in writing was fatal. Therefore, the claim for wrongful or unfair dismissal fails because the Def end an ts found the Plaintiff guilty of Absenteeism after which he was dismissed. 6.24 All factors considered, the only reasonable conclusion I have arrived at is that the Defendants' evidence as established was on a balance of probabilities true that the Plaintiff's dismissal was justified and fair. (iii) whether the Plaintiff is entitled to reliefs sought. 6.25 Having found that the Plaintiff's dismissal was neither wrongful nor unfair, I find that, the claims for wrongful and unfair dismissal, an order that the proceedings before Adhoc Tribunal were a nullity, an order that failure of the Defendants to communicate the Defendants' decision was -J14- illegal and unfair to the Plaintiff are without merit and the same all fail. 6.26 However, as regards the outstanding emoluments, I find that it is not in dispute that the Plaintiff is owed the same. However, since there is a dispute in terms of the quantum of the emoluments, I order that the emoluments due to the Plaintiff be assessed by the Deputy Registrar. 7 .0 CONCLUSION 7 .1 For avoidance of doubt, the Plaintiff's claim is hereby DISMISSED in part. The Plaintiff is thus not entitled to; (i) For an order that the proceedings before the Adhoc Tribunal convened to hear and determine charges against the Plaintiff were a nullity. (ii) For an order that failure of the Defendant to communicate the Defendant's decision was illegal and unfair to the Plaintiff. (iii) Damages for unfair dismissal. (iv) Damages for wrongful dismissal. (v) Costs. 7.2 However, the Plaintiff is entitled to be paid his outstanding emoluments as will be assessed by the District Registrar. In assessing the District Registrar shall determine; (1) What type of emolument remained unpaid at the end of each con tract served. (2) Following the finding in (1) above, how much the Plaintiff is entitled to if any at the end of each contract served. -JlS - (3) Determine the grand total of the emoluments that are due to the Plaintiff. DELIVERED AT LUSAKA IN OPEN COURT THIS 20TH DAY OF MARCH, 2024 . . . . ~&!:. ?. ............ ~' .. ~ ... . S. V. SILOKA HIGH COURT JUDGE -J16-