Musonda Best Chituntu v Road Transport and Safety Agency (APPEAL NO.40/2020) [2023] ZMCA 421 (5 February 2023)

• • ( I l .. IN THE COURT OF APPEAL OF ZAMBIA APPEAL N0.40/2020 HOLDEN AT LUSAKA (Civil Jurisdiction) BETWEEN: MUSONDA BEST CHITUNTU AND ROAD TRANSPORT AND SAFETY AGENCY RESPONDENT CORAM: MAKUNGU, NGULUBE AND SHARPE-PHIRI, JJA. On 17th January, 2023 and 6 th February, 2023. For the Appellant: N. Muyatwa, KBF and Partners For the Respondent: D. Kalima, in House Counsel JUDGMENT NGULUBE, JA, delivered the Judgment of the Court. Cases referred to: l. The Attorney-General vs Richard Jackson Phiri (1988-1989)ZR 2. Caroli ne Tomaida Daka vs Zambia National Commercial Bank SCZ Judgment Mumba 15 of 2015 3. Zambia National Provident Fund vs Y-N Chinua (1986) Z. R. 70 -12- 4. Sikombe vs Access Bank Zambia Limited SCZ Judgment Number 240 of 2013 5. AEL Zambia Plc vs Swift Simwinwa Appeal Number 223 of 20.16 6. 7. Undi Phiri vs Bank of Zambia (2007) Z-R-186 Eston Banda Edward Dalitso Zulu V Attorney General SCZ Appeal Number 42/ 2016 8. Care International Zambia Limited Vs Misheck Tembo Selected Judgment Number 56 of 2018 9. Sikombe Vs Access Bank (Z) Limited SCZ Judgment Number 240 of 2016 LO INTRODUCTION 1.1 This is an appeal against ajudgment of the High Court delivered by Newa, J, on 12 th February, 2020 dismissing the appellant's claim for wrongful or unfair dismissal for lack of merit. ·2 .0 BACKGROUND 2.1 The appellant's employment was terminated by the respondent and the appellant reacted by commencing an action by way of writ of summons and statement of claim seeking the following reliefs- -J3- 1. An order that the dismissal was wrongfu] and unfair; 2. Reinstatement; 3. In the alternative, damages for wrongful and unfair dismissal; 4. Payment of salary arrears from the month of March to date; 5. Damages for mental anguish and distress; 6. Interest. 3 .0 THE APPELLANT'S CASE 3.1 The statement of claim averred that the appeHant was employed by the respondent as an Information and Communication Technology Clerk (ICT clerk), on 1st September, 2015. On permanent and pensionable terms. 3.2 The appellant was also the General Secretary of the National Road Sector Agencies and Allied Workers Union of Zambia. 3.3 It was averred that on 15 th December, 2017, an employee named Precious Muchimba, who was based at the Livingstone office of the respondent, was suspended for allegedly giving false information as she was accused of having submitted a false .. -J4- Examination Council of Zambia Certificate pnor to her employment. 3.4 The day after the said Precious Muchimba was suspended, the appellant posted a video on a Whatsapp group for members of the Union in which he urged the workers to unite and that they should not be intimidated. He agitated for the workers to withdraw their labour stating that they would not accept any ill-treatment by the Chief Executive Officer (CEO) as they wanted to work. 3 .5 On 20th March, 2018 the appellant received a letter of suspension from the respondent and was charged with the offences of p a rticipating in an illegal strike and inciting other employees to take part in industrial action. 3.6 The appellant submitted an exculpatory letter dated 21st March , 2018 and stated that the charge of iHegal strike was purportedly committed in his capacity as Union member holding the position of General Secretary, and that charging him in his individual capacity, was an irregula rity . The appellant stated tha t cautioning the C. E. O for mishandling affairs of the employees, did not amount to a ssa ult or threatening violence. -JS- 3. 7 The appellant averred that after a disciplinary hearing was held, he was summarily dismissed from employment on 25 th April 2018, for alleged dishonest conduct, contrary to clause 18(29} of the Respondent's Disciplinary and Grievance Procedure Code. 3.8 He appealed against his dismissal and on 2 nd May, 2018 he received another letter of dismissal for allegedly intimidating the C. E. O and senior management of the respondent, in a video that he posted on social media on 16th December, 2017: contrary to clause 18(29) of the Respondent's Disciplinary Code. 3.9 On 29th May, 2018, the Appeals Committee sat and upheld the decision to summarily dismiss the appellant from employment. The appellant averred that the disciplinary process was tainted with malice and procedural impropriety. He further stated that the Disciplinary Code was breached and that the rules of natural justice were not followed. The appellant alleged that he was not given a fair and prompt disciplinary process, contrary to clause 5.2 of the respondent's Disciplinary and Grievance Procedure Code. The appellant complained that the respondent -J7- black clothes and leave their work stations as they demanded to be addressed by Union officials. 3.13 The respondent averred that on 20th March, 2018 the appellant was charged with the offence of taking part in illegal industrial action and assault or threatening or intimidating his employer or a supervisor at a place of work, contrary to the said Disciplinary and Grievance Procedure Code. 3.14 The appellant was suspended from employment pending the hearing of his matter. According to the respondent, the appellant was found guilty of the offences he was charged with and was dismissed from employment for intimidating employees or a supervisor at a place of work, contrary to Clause 18(29) of the respondent's Disciplinary Code. 3.15 The respondent averred that the letter dated 2 nd May, 2018 was written to correct the error that was made in the earlier letter that was written to the appellant on 25th April, 2018 . The respondent averred that the Appeals Committee sat on 29th May, 2018, and that the respondent complied with the disciplinary procedures in its Code when it dismissed the appellant. -JS- 3.16 At the trial, the appellant testified to the effect that on 20th March, 2018, he received a letter of suspension from employment and he was charged with the offences of assault, intimidating, threatening and inciting workers. That he was also accused of taking part in an illegal strike. He stated that Precious M uchim ba, the chairperson of the Union 1n Livingstone was suspended from employment on 14t h December, 2017, for submitting a wrong grade twelve certificate. 3.17 The appellant admitted that on 14th December, 2017, he recorded a video in his capacity as General Secretary of the Union while he was at home, as he was on leave. The recipients of the video were members of the Union. In the video, his message was to urge the workers to be united and stand up against victimization and intimidation. He was charged on 20th March, 2018, three months and seven days after he posted the video in issue on the Whatsapp group . According to the appellant, the time limit under clauses 14.0 and 14.1 of the respondent's Disciplinary and Grievance Code was not followed. -J9- 3.18 The appellant stated that at the time when he posted the video, he was on leave and was carrying out work on behalf of the Union. The appellant stated that he was eventually called and attended a hearing on 23rd April, 2018 at which he was found guilty of intimidating the CEO and senior management. He was also found guilty of inciting workers to go on illegal industrial action and was summarily dismissed from employment. 3.19 He later received a letter dated 2 nd May 2018, which withdrew the letter of dismissal that he received earlier and he was summarily dismissed for the offence of intimidating supervisor, pursuant to clause 18(29) of the Disciplinary Code. The appellant stated that he should have been given a final warning, instead of being summarily dismissed. 3.20 According to the appellant, the C. E. O should have recused himself from the disciplinary process because he was the complainant. The appellant however did not complain to the Appeals Committee, about the C. E. O's conflict of interest. 3.21 The respondent's witness DWl, Ezekiel Moyo, a Human Resources Officer, testified that the appellant was charged with three offences in line with the Disciplinary Code and after -J9- 3.18 The appellant stated that at the time when he posted the video, he was on leave and was carrying out work on behalf of the Union. The appellant stated that he was eventually called and attended a hearing on 23rd April, 2018 at which he was found guilty of intimidating the CEO and senior management. He was also found guilty of inciting workers to go on illegal industrial action and was summarily dismissed from employment. 3.19 He later received a letter dated 2 nd May 2018, which withdrew the letter of dismissal that he received earlier and he was summarily dismissed for the offence of intimidating supervisor, pursuant to clause 18(29) of the Disciplinary Code. The appellant stated that he should have been given a final warning, instead of being summarily dismissed. 3 .20 According to the appellant, the C. E. O should have recused himself from the disciplinary process because he was the complainant. The appellant however did not complain to the Appeals Committee, about the C. E. O's conflict of interest. 3.21 The respondent's witness DWl, Ezekiel Moyo, a Human Resources Officer, testified that the appellant was charged with three offences in line with the Disciplinary Code and after -JlO- investigations were conducted, he was duly heard by the Disciplinary Committee which later found him guilty in line with the charges in the Disciplinary Code. The appellant was then dismissed and when he appealed to the Appeals Committee, his dismissal was upheld. According to DW 1, the Disciplinary Committee was of the view that the video which the appellant posted on the Whatsapp group, threatened and intimidated sen10r management, contrary to clause 18(29) of the Disciplinary Code. 4.0 DECISION OF THE LOWER COURT 4 . 1 The learned Judge considered the evidence before her and the submissions of the parties. She made the following findings of fact- (1) That the appellant was employed by the respondent as ICT Clerk and was also the General Secretary of the National Road Sector and Allied Workers Union of Zambia. (2) The appellant posted a video on a Whatsapp group for unionized employees of the respondent. -Jll- (3) That the appellant was charged, appeared before a Disciplinary Committee and was subsequently dismissed from employment. (4) The appellant appealed against his dismissal but was unsuccessful. 4.2 In deciding whether there was wrongful dismissal, the lower Court referred to the case of The Attorney-General vs Richard Jackson Phiri1 where it was stated that ... ... . " ..... The court cannot be required to sit as a Court of Appeal from the decision of the Public Service Commission to review its proceedings or to inquire whether the decision was fair or reasonable. The court ought to have regard only to the question whether the Public Service Commission had valid disciplinary powers and if so, whether such powers were validly exercised. 4.3 The lower court also cited the case of Caroline Tomaida Daka vs Zambia National Commercial Bank2 , where th e Supreme Court stated that - " .... once the correct procedures have been followed by the disciplinary bodies or organs of the employer, the only question which can arise for the consideration of the court, based on the facts of each case, is whether there was a substratum of facts established to support the disciplinary measures. If there is no evidence or facts to sustain the charges levelled in the disciplinary proceedings before the .. -J12- employer, then injustice would be visited upon the party concerned if the court could not re view the validit y of t h e exercise of its powers simply because the employer's disciplinary body or organ went through the proper motions, and followed the proper procedure" 4.4 The Court went on to opine that wrongful dismissal is essentially procedural and that the issue before it was whether the respondent followed the procedure in its Disciplinary Code in dismissing the appellant and whether the organ that exercised the disciplinary powers had the authority to do so. 4.5 The lower Court was found that the appellant was charged pursuant to clause 18(29) of the Disciplinary Code after he posted the video. The Court stated that the appellant was found guilty of the charge of threatening or intimidating employers or supervisor at the place of work and was then dismissed from employment. 4.6 The Court found that there was a substratum of facts upon which the respondent based the disciplinary action against the appellant, and that he was not victimized as a Union official. 4.7 The lower Court referred to the case of Zambia National Provident Fund vs Y. N. Chirwa3 , where it was held that - .. -J13- " ...... .... where it is not in dispute that an employee has committed an offence for which the appropriate punishment is dismissal, and he is also dismissed, no injustice arises from failure to comply with the laid down procedure in the contract, and the employee has no claim on that ground for wrongful dismissal or a declaration that a dismissal is a nullity" 4.8 The Court found that an offence was committed by the appellant and fur th er found that the appellant had failed to prove his case on a balance of probabilities. The claims for unfair dismissal and for damages in the alternative were accordingly dismissed. The claims for salary arrears from March to date I and for damages for mental destress were also dismissed. The Court then ordered each party to bear its costs. 5.0 THE APPEAL 5. 1 The appellant was aggrieved by the decision of the lower court and launched this appeal, advancing four grounds of appeal couched as follows- 1. The learned Trial Judge erred in law and fact where she declined to consider whether or not the offenc e of which the plaint iff was summarily dismissed had been established by the defendant . .. -Jl4- 2. The learned Trial Judge erred in law andfact when she declined to consider whether or not the penalty for summary dismissal was justified in the circumstances despite having found at page J6's that the appe·llant was found guilty of the charge of threatening or intimidating employees or supervisor at a place of work. 3. The learned Trial Judge erred in law and fact when she held that the plaintiff waived his right not to have the CEO sit on the Appeal Committee as he was an interested party when he answered in the affirmative when asked whether he was comfortable with the composition of the Appeal Committee. 4 . The learned Trial Judge erred in law and fact when she found that the plaintiff had not proved his case of unfair dismissal on a balance of probability despite finding as a fact that the subject video was posted by the appellant on a private Union Whatsapp group for the respondent's unionized employees in his capacity as General Secretary of the RTSA workers Union and the RTSA unionized employees faced victimization from the respondent. 6.0 APPELLANT'S ARGUMENTS 6.1 The appellant filed written heads of arguments into Court on 18 th February, 2022. In arguing ground one, it was submitted that the lower Court declined to consider whether or not the offence for which the appellant was summarily d ismissed had been established by the respondent as the court stated that it could not sit as an appellate Court with regard to the charges and the only questions to be determin ed were whether t he right -JlS- procedure was followed and whether the disciplinary committee had power to discipline the appellant. 6.2 This Court's attention was dr awn to the case of Sikombe vs Access Bank Zambia Limited4, where Justice Malila, JS (as he then was) had this to say- "Where an employee has not committed an identifiable dismissible wrong or such wrong cannot be established, the employer shall not be allowed to find comfort in the principle we expounded in the Zambia National Provident Fund Vs Chirwa case. " 6.3 It was argued that the principle in the case of Zambia National Provident Fund Vs Chirwa was clarified by Hon Dr Justice Malila (as he then was) to the extent that the rule espoused therein will not be relied upon where an employee has not committed an identifiable dismissible wrong or where the wrong has not been established. 6.4 It was submitted that the Court must investigate and consider the evidence before it to determine whether an employee committed an identifiable and dismissible wrong and that the lower Court erred by not doing so. .. -J16- 6.5 Counsel stated that the appellant was dismissed for the offence of assault or threatening or intimidating employer or supervisor at the place of work, pursuant to clause 18 (25) of the respondent's Disciplinary and Grievance Procedure Code which is defined under clause 19 (29) of the respondent's Disciplinary and Grievance Procedure Code as- "Causing injury or bodily harm to another at place of work" 6. 6 It was argued that the appellant posted the video in issue on an employees' Union Whatsapp group and was accused of having assaulted, threatened or intimidated the C. E. O. It was submitted that the appellant posted the video on a private Whatsapp group for unionized employees while he was at home on Saturday, 14th December, 2017, and that he did not commit an identifiable dismissible wrong or wrong that was established. According to Counsel, DW 1 informed the lower Court that it was not an offence under the respondent's Disciplinary and Grievance Procedure Code to post a video on a private Whatsapp group for unionized members of staff. On the authority of the -J17- case of Sikombe Vs Access Bank (Zambia) Limited4, we were urged to allow ground one for the aforestated reasons 6.7 The gist of the argument in ground two is that having established in ground one that the evidence at the disciplinary hearing and at the trial did not identify or establish the offence u n der clause 18(29) which is defined under clause 19(29) of the Disciplinary Code as - "Clause 18(29) - Assault or threatening or intimidating employee or supervisor at place of work, summary dismissal, "Clause 19(29)- Assault at place of work causing injury or bodily harm to another person at place of work" 6.8 lt was contended that there was n o evidence that the appellant caused injury or bodily h arm to any person at a place of work as provided for under clause 18(29) as read with clause 19(29) of th e Disciplinary and Grievance Procedure Code. 6.9 It was argued that clause 18(25) prescribes the correct offence and it provides that- "Threatening violence or intimidating employees or supervisor physical or verbal act tending to instill fear or apprehension in other empfoyees or third persons. -. 6.10 According to Counsel, the correct punishment under clause 18(25) is a final written warning and not summary dismissal. It was submitted that the lower Court erred when it declined to consider whether the appellant's summary dismissal was justified in the circumstances. We were urged to allow ground two for the aforestated reasons . 6.11 Under ground three, it was argued t hat clause 9.4 of the respondent's Disciplinary Code of conduct on the subject of "Declaration of interest" provides that - "A member shall not sit or act as a member of the committee if he or she has any interest direct or indirect personal or pecuniary in any matter before the committee 6.12 This court's attention was drawn to the case of AEL Zambia Plc Vs SWIFT SIMWINWA5 , where the Supreme Court stated th at- "The importance of natural justice in employee disciplinary hearing cannot be overemphasized. An employee must be suqjected to afair process. We find that there was, in this case, a flagrant violation of the rules of natural justice by the appellant. DWl and DW2 clearly had their own interests to serve because they are the ones that raised the allegations against the respondent." 6.13 It was contended that there was an obligation, on the part of the respondent, as an employer to ensure that the persons .. -. -J19- conducting the disciplinary hearing were objective and impartial. It was argued that clause 9 .4 is couched in mandatory terms and does not provide for an exception to the duty or obligation placed on the committee in respect of the rule against declaration of interest. 6.14 It was argued that the C. E. O of the respondent had a personal and direct or indirect interest in the matter and should not have been involved in the appellant's disciplinary process. It was contended that the same could not have been waived by the appellant's acquiescence and that the lower Court fell into grave error when it found that the appellant could not claim that the panel which decided his fate was impartial or that a member of the panel had an interest. This was notwithstanding that the appellant waived the right not to have the CEO on the Appeals Committee as he answered in the affirmative when he was asked if he was comfortable with the composition of the Appeals committee. 6.15 We were urged to allow the third ground of appeal and find that the appellant's dismissal was wrongful and in breach of the contract of employment. We were further urged to find that the ' . . . -J20- appeal has merit and allow all the grounds of appeal, with costs to the appellant in this Court and in the Court below. 7.0 RESPONDENT'S ARGUMENTS 7.1 The respondent filed heads of argument on 23rd March, 2022 where in it was submitted that the respondent would establish the fallowing - a) That the appellant was properly charged and dismissed and that as such, the lower court was on firm ground where it held that wrongful dismissal focuses on the procedure used which in casu was properly followed. b) That the appellant did issue a video that was threatening or instilling fear in employees or supervisor at the place of work; and c) That the' appellant's appeal lacks merit as there was no wrongful or unfair dismissal as the appellant was dismissed for the offence he was charged wi.th since he had threatened violence or instilled fear in his supervisor. 7 .2 Responding to ground one, it was submitted that the question that needs to be answered is whether the appellant was dismissed for an identified wrong. 7. 3 The case of Undi Phiri vs Bank of Zambia6 was ref erred to where the Supreme Court restated its position in the case of . , .. ,J21- Zambia National Comm,ercial . Bank Vs Y. N. Chirwa (Supra) when is held that- " .... whe.re it is not in dispute that an ,employee has committed an offenc,e for which the appropriate punishment is dismissal, and th,e empfoye.r dismisses him without following the procedure pri.o:r to the dismissal laid down in a contract of service, no i,yustice is ,done to the employee by such failure to foUow the procedure and he has no claim on that ground either for wrongful dismissal ,or for a dedaration that the dismissal was a nullity'' 7.4 This Court's attention was drawn to page 111 of the record of appeal, where the charge sheet against the appellant is exhibited. It was submitted that the appellant was dismissed for assault or intimidating or threatening employees or supervisors at place of work in accordance with clause 18 (29) of the Disciplinary and Grievance Procedure Code. 7.5 It was argued that the charge sheet contained three separate acts, namely assault, intimidation and threatening violence and that an employee who is found guilty on one act can be dismissed under clause 18(29) of the Disciplinary and Grievance Procedure Code. .. . . -J22- 7 .6 According to Counsel, the exhaustive definition of the offence for which the appellant was dismissed is provided for in clause 19(25) of the Code as shown at page 228 of the Record of Appeal. It was submitted that the appellant was dismissed for the offence of- "Physical or verbal act tending to instill fear or apprehension in other employees or third persons ... further ... causing injury or bodily harm to another person at place of work." 7 .7 The respondent's Counsel submitted that the appellant posted the video when he had resumed duty on 16th December, 2017 Further, it was contended that the appellant's argument that a wrong punishment was meted out is highly misconceived as clause 18(29) shows that the punishment for one who is found guilty under the said clause is summary dismissal. 7.8 It was submitted that there is no dispute that the appellant posted a video, which intimidated or threatened senior management and that as such, the appellant was dismissed for an offence he was charged with. Counsel submitted that the appellant committed an identifiable dismissible wrong and -J23- based on the foregoing, the first ground of appeal should be dismissed for lack of merit. 7 .9 Turning to ground two, it was submitted that contrary to the appellant's arguments and having established that the offence for which he was dismissed is defined under clause 19(29) whose punishment is summary dismissal, it was argued that the appellant contradicted himself. The Court was urged to find that the appellant admitted that he posted the video on 16th December, 2017 on a Whatsapp group comprising Union members. It was submitted that the threats to the CEO are evident in the video that the appellant posted and that ground two lacks merit as the appellant committed the offence he was charged with, whose punishment was summary dismissal as provided for in clause 18 (29) if the Disciplinary and Grievance Procedure Code. 7 .10 Responding to ground three, it was submitted that the appellant was comfortable with the composition of the Appeals Committee. It was contended that the appellant cannot argue that the CEO was not impartial when he stated that he was comfortable with the composition of the Appeals Committee. It . - -J24- was argued that the issue of declaration of interest lacks merit and should be dismissed by this Court as the appellant committed the offence he was charged with, whose punishment is summary dismissal. 7.11 The respondent's Counsel contended that the appellant had failed to prove his case against the respondent and this Court was urged to dismiss the appeal with costs. 8 .0 THE HEARING 8.1 At the hearing of the appeal, the learned Counsel for the appellant, Mr Muyatwa submitted that he would entirely rely on the heads of argument filed into court. 8.2 Mr Kalima, the respondent's legal Counsel submitted that he would rely on the heads of argument filed in reply. He briefly augmented the heads of argument by urging us Court to uphold the lower court's decision as the appeal lacks merit. -J25- 9.0 DECISION OF THIS COURT 9 .1 We have carefully read the record of appeal, considered the grounds of appeal as well as the spirited arguments by both Counsel. 9.2 We note that the grounds of appeal are centred on whether the dis:missal was wrongful and/ or unfair. We shall begin by addressing our minds to ground one followed by ground two and lastly, we will consider ground three. 9.3 In the case of Eston Ba.nda Edwa.rd D,alitso Zulu V Attorney Ge.ne~aF, the Supreme Court of Zambia reaffirmed that in this jurisdiction there are two categories of dismissal, wrongful and unfair dismissal. Wrongful dismissal is concerned with a breach of a relevant term embodied in a contract of employment between the employer and the employee. 9 .4 In the case of Care International Zambia Limited Vs Misheck Tembo8 , the Supreme Court acknowledged that the Disciplinary Code has a contractual effect on an employee. 9.5 In our view, the fate of this appeal depends on how we shall resolve the issue of whether or not the appellant committed the offence for which he was summarily dismissed. -J26- Counsel for the appellant advanced arguments suggesting that the lower Court did not consider whether the offence for which the appellant was summarily dismissed had been established by the respondent. 9.6 Having regard to the above contention, it is appropriate that we interrogate this issue particularly in light of the fact that the outcome of such interrogation will decisively define the fate of the appeal. The issue that led to the appellant's dismissal was the video that the appellant recorded and posted on the unionized employee's Whatsapp group, on 16t h December, 2017. 9.7 The charges that were laid against the appellant as per the charge sheet, on page 4 of the appellant's bundle of documents are the following 1. Taking part in an illegal strike or other industrial action, contrary to Clause 18 (42) 2 . Inciting othe rs to take illegal industrial action contrary to Clause 18(43) of the RTSA Disciplinary Code. 3. Assault or threatening or intimidating employee s or supe rvisor at the place of work, contrary to Clause 18(29). .• •'lo ,. - -127- 9.8 From the Record of Appeal, it is clear that the appellant was found not guilty of the first two charges. From the evidence of the appellant, he attended his disciplinary hearing with a Union official and was therefore, in our view, given a fair hearing. The evidence on record further shows that the appellant posted the video and was found guilty of the charge of threatening or intimidating employees or supervisor at a place of work. In the video, the appellant stated that " ... Mr CEO, with due respe,ct, please, please, please, please do not force us ...... We do n,ot want t ,o bite you •··--·--••foave us alone we want to wor.k" 9 .9 From the words highlighted above, which were spoken by the appellant in which he expressly addressed the CEO of the respondent in the said video, we are of the view that the appellant did threaten violence and issued the video in an intimidating manner, specificaUy issuing threats to the C. E.0 of the respondent. 9.10 We are of the view that the offence that the appellant was dismissed for was established and it was identifiable. In that regard, we form the view that the case of the appellant is -J28- distinguishable from that of Sikombe Vs Access Bank (Z) Limited (Supra) referred to earlier by the appellant. 9.11 The evidence on record does confirm that the appellant posted a video which intimidated or threatened senior management of the respondent and specifically threatened and intimidated the CEO of the respondent. That being the case, we are satisfied that the appellant was dismissed for an offence he was charged with and was identifiable. 9.12 We have taken the trouble of undertaking the brief conceptual expedition above to discount the misconception that the appellant was dismissed when no offence was identifiable against him. The appellant's video, though posted on the employees Whatsapp group, was aimed at threatening and intimidating the CEO and senior management. We accordingly dismiss the first ground of appeal as it lacks merit. 9.13 The second ground of appeal attacks the lower Court for failing to consider whether or not the penalty of summary dismissal was justified in the circumstances. -J29- We are of the view this ground lacks merit as the appellant did commit the offence, which led to his summary dismissal, as provided for under Clause 18(29) of the Disciplinary and Grievance Procedure Code. 9 .14 Ground three attacks the lower Court for finding that the appellant waived his right not to have the CEO sit on the Appeals Committee as he was an interested party. 9.15 The record of appeal shows that when the appellant was asked if he was comfortable with the composition of the Appeals Committee, he answered in the affirmative. We wish to emphasize that it was not in dispute that the appellant committed the offence he was found guilty of. He did not dispute posting the video in issue whose contents are common cause. 9.16 We are therefore of the view that the appellant's argument that the CEO should not have sat on the Appeals Committee is an afterthought, as he had told the Appeals Committee that he had no objection with the CEO sitting on the Committee. We are of the view that even if the composition of the Appeals Committee had been different, the punishment would have remained the same and the appeal would have been dismissed. The third .... - -J30- ground of appeal cannot possibly succeed and we accordingly dismiss it. 10.0 CONCLUSION 10.1 As we conclude our reflections in this appeal, we are of the view that the learned trial Judge made findings of fact based on the evidence on record and was careful in evaluating the evidence and weighed all the relevant facts. 10.2 The lower Court's judgment cannot be impugned based on the grounds which the appellant raised. 10.3 Accordingly, this appeal is dismissed in its entirety. Costs are awarded to the respondent, to be taxed if not agreed upon. COURT OF APPEAL JUDGE RRb P. C. M. NGULUBE ~~ "Q_ . ARPE- PHil;J COURT OF APPEAL JUDGE ::::APPEAL JUDGE