National Breweries Ltd v Nzowa (Appeal 21 of 2002) [2003] ZMSC 182 (4 March 2003)

IN THE SUPREME COURT FOR ZAMBIA HOLDEN AT NDOLA APPEAL NO. 21/2002 (Civil Jurisdiction) BETWEEN: NATIONAL BREWERIES LIMITED APPELLANT AND PAUL NZOWA RESPONDENT Coram: Lewanika, DCJ, Chibesakunda and Mambilima JJS on 4th June 2002 and 4th March 2003 For the Appellants: Mr We Nyirenda, Ezugha, Musonda & Co. For the Respondent: Mr P Mwale of Mwale and Company JUDGMENT Chibesakunda, JS, delivered the Judgment of the Court Cases referred to: 1. 2, 3. Zambia Airways Corporation Limited vs Gershom B B Mubanga Contract Haulage Limited vs Kamayoyo [1982] ZR 13 Joseph Daniel Chintomfwa vs Ndola Lime Company Limited SCZ 28/99 In this appeal National Breweries Limited (the Respondents before the Industrial Relations Court) are now challenging the Industrial Relations Court (IRC) decision in favour of Paul Nzowa (the Complainant before the Industrial Relations Court). The Respondent had lodged a complaint before the IRC against his employers now the Appellant that his summary dismissal, on the ground that he incurred beer shortages in his deliveries was unwarranted, discriminatory and unlawful. He therefore sought reinstatement or damages and costs before the IRC. : J2 : His evidence before the IRC was that he used to be employed as driver/sales man by the Appellants. He used to receive instructions from his immediate boss the branch manager to deliver beer to taverns without any invoices as some of these customers in question used to pay directly to the Branch Manager. The responsibility to raise necessary invoices was Branch Manager's. In November 1995 the Respondent was instructed to deliver 500 litres of Chibuku beer to Mumbi Simunyanbe. Later the Branch Manager pushed the blame for this transaction to the Respondent, saying that he delivered without collecting payment. According to him, as in any other cases, the Appellant's Branch Manager was personally expected to raise the necessary documentation and to have received payment. At another occasion the Respondent was again instructed to deliver 500 ltrs to the same Mr Simunyambe. He went on to testify that on these two occasions he could not question the Branch Manager on whether or not he received payment because he expected the branch manager to know the procedures. He further explained the beer shortage that on other occasions he was instructed to deliver beer which turned out to be bad beer, in such occasions the customer directly contacted the manager who in return instructed him to deliver the same quantity of beer to same the customer as substitute for the bad beer. The other explanation of shortage of beer was that customers tampered with the calibration of the tavern tanks. When he noticed that there was this tampering of tanks by customers he reported to the Branch Manager but nothing was done. The other reason was that the beers he delivered the reading of the metres used to be affected by way of the truck in which it was placed when tanking the truck and if the truck was placed in a slope ground that affected the reading of the metres at the end of his delivery trip. A number of drivers complained about the calibration of beer. Again there was nothing done by the Appellant. : J3 : He also testified that although three other drivers had shortages in the delivery of beers he was the only one dismissed. The two drivers were Jack Phiri and Ray Mumba. According to him the two drivers/salesmen were surcharged and then later reinstated. The two drivers/salesmen had their beers with higher figures than the 2385 litres which was his shortage. The evidence by the Appellant before the court was that the calibration of tanks was such that they could know the volume by dipping and that there was inside the truck a metre. If one pumped beer from the tanker the metre in the tank would show the volume pumped out after putting the dip chain in the reading and would agree with the volume in the tank. According to the Appellants they had given instructions to use these measurements and never to rely on the customers' measurements. The Appellant's evidence in cross-examination was to agree with the Respondent that there were complaints from the driver/salesmen that there was tampering with the calibration by customers and that these used to cause losses. That is why these instructions were given to rely on the reading in the tanks. The witness also from the Appellants agreed that the driver/salesmen complained about gauges on the trucks as being affected by the slope when tanking the trucks and that that was never corrected. But they testified that the calibrations and the Respondent's case were handled in accordance with National Breweries procedures. On the evidence before it the IRC found in favour of the Respondents. The court ordered the award of 18 months' salary as damages to the Respondent and further awarded the Respondent with interest at the rate of 20% from the purported dismissal date to the date of judgment and thereafter 6%. The court also granted the Respondent the entire amount, which was due to him at the time of the purported dismissal. Now before us Mr Nyirenda argued on two grounds. : J4 : 1. that the learned Deputy Chairman and his members misdirected themselves when they accepted the Respondent's arguments that the losses were caused by calibration of tanks and therefore the dismissal of the Respondent was wrongful. According to him the court also was heavily influenced by the evidence that the losses incurred by the Respondents were due to calibration of tanks in taverns. He argued that the Respondent was not an innocent employee. He accepted that he incurred a loss of 2385 litres of beer so he was not innocent and also the incurred loss was not authorized any way. The Appellants had given him instructions to use the metre on the trucks in measuring the beers he delivered and not to use customers' measurements. He referred to the letter of dismissal at page 16 of the record of appeal, which emphasized this point that the Respondent ought to have been using properly calibrated and graduated delivery truck of beer sales as that was the proper procedure. 2. that the court below misdirected itself in law in awarding the complainant 18 months salary as damages at the interest rate of twenty per cent (20%) from the date of the purported dismissal to the date of judgment. He referred to the case of Zambia Airways Corporation Limited vs Gershom B B Mubanqa (1) where it was held that, "damages must be equivalent to 12 months." He also referred to the leading cause of Contract Haulage Limited vs Kamayoyo (2) where it was also held that "damages would amount to the usual salary for the notice period." He also referred to the Copperbelt Bottling Company Limited vs Phineas Fombe, where the late J5 Justice Chaila, JS, in the judgement of the court stated that, "/Is regards the second ground, Mr Mwewa Couscel for the Respondent has conceded that there is nothing extra ordinary that would take the case out of the Kamayoyo case in cases of damages to the employee. The Kamayoyo case is that damages would be usual salary for the Notice period. We uphold concept that damages would amount to Notice period the learned trial Judge therefore misdirected himself when he gave damages contrary to the principle laid down in the Kamayoyo." He further argued that this court should uphold the appeal Mr Mwale in response submitted that the lower court was on firm ground in concluding that the losses incurred by the Respondent in beer sales were caused by problems related to calibration of tanks. He argued that there was sufficient evidence from the Respondent which was collaborated by the Appellant's own witness to the effect that there were country wide complainants over losses incurred by drivers which was reported to the Appellants and that the Respondent was one of those who complained to the management of the Appellant. The Appellant's management did nothing to correct the situation. Therefore the trial court had to reach that conclusion that there was no basis for dismissing the Respondent. Consequentially therefore the dismissal was unwarranted and wrongful. On ground two, he argued that the award of 18 months' pay plus twenty (20%) was reasonable with the circumstances of the case. We have considered the evidence on record and the arguments before us. From the record we are satisfied that the Appellants incurred loses due to defective caliberation system. We, however agree with Mr Nyirenda that the J6 : Respondent was not an innocent employee and that the loss of 2385 litres of beer was a result of the misconduct by the Respondent. The Appellant had given instructions to the drivers/salesmen including the Respondent to rely on the meter reading on trucks in measuring the beer they delivered to customers and not to use customers' measurements. In total disregard of these instructions the Respondent relied on the customers' measurements. We therefore hold that the learned Deputy Chairman and his Members misdirected themselves on that point. In view of these conclusions we will not deal with the second ground of appeal. We find merit in the appeal. We upset the findings of the lower court and quash the orders made by that court. We will not make orders on costs. D M Lewanika DEPUTY CHIEF JUSTICE L P Chibesakunda SUPREME COURT JUDGE I C M Mambilima SUPREME COURT JUDGE