Zulu v Metal Fabricators of Zambia Ltd (Appeal 70 of 2005) [2008] ZMSC 123 (17 January 2008)

■ J 1 IN THE SUPREME COURT OF ZAMBA APPEAL NO. 70 OF 2005 HOLDEN AT NDOLA (Civil Jurisdiction) , BETWEEN: NEWTON ZULU Al) APPELLANT METAL FABRICATORS OF ZAMBIA LIMITED RESPONDENT CORAM: Sakala, C. J., Chitengi and Silomba, J. J. S On the 6th June, 2006 and 17th January, 2008 For the Appellant: Mr. P. Mwale, Peter Mwale & Company For the Respondent: Mr. J. Adams, J. H. Adams & Company JUDGMENT SILOMBA, J. S., delivered the judgment of the Court. We regret the delay in the delivery of this judgment. This was due to the busy schedule of work. J 2 This appeal is against the judgment of the Industrial Relations Court (hereinafter to be called “the IRC”) dated the 5th day of May, 2005. The facts of the case, as presented before IRC, were that the appellant was employed by the respondent as an assistant purchasing manager from 1982 to 1985, when he was I dismissed from employment. He complained to the IRC and was reinstated to his job in 1990. However, when he went back, the respondent took him on as an assistant purchasing officer as his previous post had been filled by someone. He testified before the IRC that his. working relationship with the general manager of the respondent was strained on reinstatement. In November 1991, the appellant was suspended from his job together with Darius Katongo, purchasing officer, pending investigations. In March 1992, he was charged with abuse of office. The particulars of the offence alleged that the appellant caused the respondent to buy items from Josund Machinery and Spares Enterprises, a ompany he owned, at a higher price. He exculpated himself and following a hearing he was dismissed. His appeal to the general manager failed. He complained to the IRC and sought reinstatement alleging discrimination in that there were other employees of the respondent who had formed companies that were doing business with the respondent company but who were not disciplined. J 3 He gave examples of Darius Katongo who was suspended with him for a similar offence and was dismissed at first instance but was reinstated on appeal. According to the appellant, Katongo’s Company was Kalder Electrical and Building Supplies. Corneo Carder, marketing manager, owned a company called Malonda Ltd, which provided security services to the respondent. He was never touched. The further evidence of the appellant was that he was not the one who approved the purchase of angle cross irons from his company that led to his dismissal. As per procedure, he only recommended to the purchasing manager who passed it to the financial controller for the final approval of the general manager. Apparently, there were three quotations that were sourced and the quotation obtained from the appellant’s company by Kangwa, the project’s engineer, was the lowest. According to the appellant, it was not true that the respondent obtained a quotation from Zambia Steel and Building Suppliers limited at the lowest price as the company did not have steel. In cross-examination, the appellant admitted that he did not disclose to the respondent that he owned Josund Machinery and Spares Enterprise. He also admitted that he was paid KI72,800 for the angle irons. He denied that the same quantity of angle irons would have cost K31, 388.06 from the Zambia Steel and J 4 Building Suppliers. The appellant did not think it was improper to sell to the respondent at a higher price as the whole idea of business was to make profit. The evidence of the respondent, in rebuttal, was that the appellant was i responsible for buying local materials for the respondent from the cheapest sources after obtaining quotations from two or more reputable companies. After analyzing the quotations, it was the duty of the appellant to decide from which source to buy recommending to the purchasing manager for approval. When information about irregularities in the purchasing department was received, a team of internal auditors was commissioned to investigate the irregularities: the investigations revealed that the appellant’s company supplied angle irons at a higher price than other companies where the respondent would have made a saving of K140, 611.84. The investigations further revealed that the braising rodes supplied by Darius Katongo’s Company, Kalder Electrical and ^uilding Supplies, were sold at a higher price, leading to a loss of K3, 143.10. However, Katongo was reprieved on appeal because he was not involved in the buying of the items as he was responsible for foreign purchases. The investigations also revealed that it was in fact the appellant who sourced the items from Katongo’s Company and processed the recommendation for the approval of the purchasing manager. Apparently, the respondent never knew that J 5 the two companies, Josund Machinery and Kalder Electrical, were respectively owned by the appellant and Katongo because the two employees never declared their interest. The IRC considered the evidence and the submissions of counsel and found I that there was no evidence adduced by the appellant to prove, on a balance of probabilities, that he was treated less favourably when he was dismissed than any other employee who found himself in a similar situation or circumstances. The IRC also found that the respondent was justified to dismiss the appellant even though what he did was not specified as an offence under the respondent’s disciplinary code. Mr. Mwale, counsel for the appellant, filed only one ground of appeal, which read - The trial Court erred in law and in fact in holding that the appellant was properly dismissed from employment without fully considering the provisions of Section 108 of the 1990 Act now Section 84 of the Current Act. At the hearing of the appeal both counsel relied on their respective heads of argument in their entirety. We have carefully considered the evidence that was placed before the IRC and the written submissions filed in this Court and in the view we take of this appeal we do not find it necessary to summarize the J 6 submissions. The issues, as we are able to discern them both from the evidence on record and the heads of argument, are straightforward. The issues are whether a case of discrimination was made out in the evidence before the trial Court and whether an employee can be dismissed for committing an offence that is not l specified in the employer’s disciplinary code. There was no evidence, whatsoever, that proved that the appellant’s dismissal was actuated by discrimination. The appellant failed to adduce evidence to show that another employee or employees of the respondent who sold items supplied by his company or their companies to the respondent at higher prices than those obtaining in the market was or were not dismissed as he was. The evidence tending to implicate Darius Katongo failed to prove that he (Katongo) was placed in a similar position as the appellant. The evidence showed that Katongo was in charge of foreign purchases while the appellant dealt in local purchases. The evidence further showed that it was infact the appellant who procured, processed and recommended to the respondent the purchase of braising rodes from Katongo’s Company at inflated prices. We have examined the disciplinary complaint form at page 21 of the record of appeal, which was raised by the respondent against the appellant. The details of the offence specified thereat are that between August 1990 and February 1991, the appellant deprived the respondent of over K143, 755 when he made management J 7 of the respondent approve expensive contracts with his company and that of Darius Katongo. The fact that the offence of abuse of office was not in the disciplinary code of the respondent is not disputed. The appellant has argued that since there was no I provision in the disciplinary code it meant that what he did, did not amount to an offence punishable under the respondent’s disciplinary code. In dealing with the issue, the learned trial Court observed that what the appellant did amounted to an offence and as such the respondent were justified in dismissing him. We agree because the case was not only abuse of office but a clear case of misconduct bordering on dishonest behavior. In his heads of argument, counsel for the respondent referred us to paragraph 691 at page 313 of the 23rd Edition of Chitty on Contracts where the learned authors have asserted that: “there are so many cases in which the law implies a term in a contract though it is not expressly included by the parties”. This assertion can also be found at paragraph 13-001 on page 643 of the 28th Edition of Chitty on Contracts. This being the law, we are satisfied that the lower Court was on firm ground when it upheld the dismissal of the appellant even when the offence he committed was not provided for in the disciplinary code of the respondent. J 8 This appeal lacks merit and it is dismissed with costs to the respondent to be taxed in default of agreement. E. L. SAKALA CHIEF JUSTICE SUPREME COURT JUDGE S. S. SILOMBA SUPREME COURT JUDGE