Motor Holdings Zambia Ltd v Mundia (Appeal 176 of 2000) [2001] ZMSC 159 (23 May 2001)

iN THE SUPREME COURT GF ZAMBIA APP^LNaJ 26J2E2000 HOLDEN AT LUSAKA (CIVIL JURISDICTION) B E T W E E N: MOTOR HOLDINGS ZAMBIA LIMITED APPELLANT AND PAUL MUNDIA RESPONDENT CORAM: NGULUBE, CL, CHAILA AND CHIBESAKUNDA 3JS On 25ih January and 23rd May. 200 L For the appellant -• Mr. M. Mutemwa, of Mutemwa Chamber?- For the respondent - Mr. C. L. Mundia, of Mundia and Company J U D G M E N T Nguhube, CJ.. delivered the judgment of the court. The action was launched in the Industrial Relations Court by the respondent who claimed to have been unfairly dismissed irom his position as Workshop foreman on a charge which he alleged was baseless, malicious and tribady motivated. The appellants claimed to have lawfully and properly dismissed the foreman for misconduct. Aller hearing add considering the evidence, the court made a number of important findings and drew conclusions, some of which were raised in this appeal Thus, the court V found and held that when the complainant’s supervisor preferred disciplinary charges, this was not on any tribal grounds so that there was no tribalism as alleged by him. With regard to the misconduct charged, the court agreed that the complainant had no authority to release spare parts on credit to outsiders and it was an irregularity for him to have drawn spares for a Mr. Mudenda’s vehicle which was not in the workshop. Similarly, the court held that it was irregular for him to have withdrawn spares from the back counter and to sell them for cash or credit instead of selling the same through the parts department. The customer only paid the K509,000 involved after disciplinary action had already been launched and the complainant was then already on suspension. The court further held that there was a lacuna in the appellant’s disciplinary code as well as in the respondent’s contract of employment with the result that the misconduct complained of was not covered by any specific provision showing any specific disciplinary offence so that there was no specific clause which the employer could invoke to support the action taken. Because of the perceived lacuna in the conditions to cover the offences actually shown to have been committed, the court decided that the complainant would be treated as terminated unfairly in breach of the clause providing for the giving of notice or payment in lieu. While declaring that the court would not condone indiscipline nor protect wrongdoers, the court nonetheless was of the opinion that the respondent should only have been surcharged and not terminated since he did not benefit from the impugned transactions. Since the termination was without the support of the disciplinary Code, the court decided to regard it as unfair. As for the remedy, reinstatement was discounted but instead it was ordered that the complainant be deemed redundant and his redundancy package should attract interest at Bank of Zambia lending rate from the date of dismissal to the date of payment. The upshot of the main ground of appeal was that, in the face of the proven misconduct (whereby the complainant had disobeyed instructions on the granting of credit and he had deceptively opened a job card and issued spares for a vehicle which was not even in the workshop) it was wrong in law to reject on the basis of a possible technical lacuna the employer's right to terminate by dismissal. It was argued that if the clauses in the disciplinary code, which the employer contended covered the situation were in fact not applicable, nonetheless the employer still retained the right at common law to dismiss the worker for gross misconduct of the type established. The clause relied upon listed refusal to obey instructions as dismissable even on first breach. We have seen it and it is on record. Mr. Mundia in his reponse 4 supported the court below and drew attention to the absence of any specific clause within the disciplinary code which could be said to have been •i breached. He stoutly resisted the invoking of the common law when the Employment Act requires grounds for dismissal. He argued that there were no such grounds established in this case. We considered the detailed submissions and arguments which are on record and which we do not recite in extensio only for reasons of economy and brevity. It is not correct to say that the court below did not find that there was wrongdoing; such an argument flies in the teeth of the findings of fact actually made below. It is also not correct that the Employment Act has ousted the common law rights of an employer to dismiss for serious misconduct. The Employment Act has intervened, especially by Section 26A introduced by the Employment (Amendment) Act No. 15 of 1997, to grant a statutory right to be heard, not to be dismissed on disciplinary grounds without being afforded a chance to be heard. This cut across the old master and servant notions where an employee could be condemned to dismissal unheard and without claim to natural justice. Now the employee to be dismissed must be given a chance to answer the charges. There was no suggestion in this case that the respondent was not given such an opportunity. The point made by the Industrial Relations Court was that the misconduct alleged was not covered by any clause or term whether in the collective agreement, or in the disciplinary code, or in the Conditions of Service and none was cited even in the letter of dismissal. The court has said a dismissal is unfair solely on account of a perceived lacuna. Indeed the word “lacuna” has been used by the Industrial Relations Court itself and it was used to justify the “surmise” - again their word - that the employer had breached the notice clause. The court missed the point that an employee guilty of wrongdoing in fact can not benefit from such wrongdoing, which is the effect of condemning an employer who has taken disciplinary' action against an erring employee. We agree that the common law applies unless ousted by the clearest statutory provisions. In this case, the court below recognised the wrongdoing but disapproved of the severity of the penalty of dismissal, saying he should have only been surcharged in accordance with a memorandum to that effect in respect of the granting of unauthorised credit to customers. The question of guilt was thus not an issue, and only the severity of the penalty was criticised. It seems to us that the finding of unfairness in this case was highly technical and based on a lacuna and a review of the sentence imposed by the employer for proven wrongdoing. A court of substantial justice should mete out such justice to both parties and the finding of unfairness here flew in the teeth of the facts. It was thus contrived and strained. It was a finding on a view of the evidence which can not reasonably be entertained and so a misdirection in point of law. This appeal has to succeed. We reverse the court below and enter judgment for the appellant. As the respondent lost employment and is probably without means, we make no order as to costs. M. M. S. W. NGULUBE CHIEF JUSTICE M. S. CHAILA SUPREME COURT JUDGE L. P. CHIBESAKUNDA SUPREME COURT JUDGE