Norman Kapepi v Powerflex Ltd (Appeal 115 of 2010) [2012] ZMSC 105 (14 November 2012)

IN THE SUPREME COURT FOR ZAMBIA Appeal No. 115/2010 HOLDEN AT KABWE (Civil Jurisdiction) BETWEEN: NORMAN KAPEPI APPELLANT AND POWERFLEX LIMITED RESPONDENT Coram: CHIRWA A/DCJ, MWANAMWAMBWA and MUYOVWE JJS On 1st March 2011 and 14th November, 2012 FOR THE APPELLANT: ’^Ir. D. Mulenga, Messrs Derrick Mulenga and Company FOR THE RESPONDENT: No appearance J UDGMENT MUYOVWE, JS, delivered the Judgment of the Court. Cases & Legislation referred to: 1. Western Excavating (ECC) LTD vs. Sharp (1978) 1 ALL ER 713 2. Coleman and Baldwin (1977) I. R. R. 342 3. Employment Act This is an appeal against the Judgment of the Industrial Relations Court sitting at Lusaka in which the Ji Court dismissed the Appellant’s claim that he was constructively dismissed from employment or declared redundant by the Respondent. The Appellant’s evidence was that he was employed by the Respondent in 2001 as a Clerk.: His last position was purchasing officer. On 15th January, 2008 he was sent on forced leave without being informed of the reasons for this move. According to the Appellant, he believed that it was because he had A declined to sell to the Respondent, a mini bus which he won after participating in a Celtel competition. That as a result, the Respondent’s General Manager had indicated that the Appellant would not be given a vehicle as per company policy unless he agreed to sell the mini bus to the company. That following this disagreement, he was placed on forced leave for 30 (thirty) days and after expiry of 30 (thirty) days, the leave was extended for a further period of 30 (thirty) days. It was during this period that his position was advertised in the Post and Times of Zambia. The Appellant continued receiving his pay although the same was by way of a payment voucher instead of his usual payslip. According to the Appellant he had accumulated a total of 146 (one hundred J2 and forty six) leave days and that he was not advised that he was sent on forced leave on account of the accumulated leave days. Under cross examination the Appellant admitted that he J was not possessed of the qualifications stipulated in the advertisement. That the advertisement was posted while he was still in office. The Appellant did not take any step after seeing the advert in the papers. He stated that the Respondent had a policy of commutation of leave days. On the other hand, the Respondent’s Managing Director (RW1) Chansa Chipili testified that the Appellant was initially employed as an orderly/cleaner in 2001. That the Appellant was later placed in the position of Procurement Officer. However, it was decided to employ a competent person in the Appellant’s position. RW1 conceded that, at this time the Appellant was still on leave. That it was also decided to redeploy him to another department. Meanwhile, the Appellant continued to receive his salary although he was paid using a payment voucher during his leave. It was admitted that the Appellant’s position was advertised in the press although he had not J3 u been informed about it and that the Appellant’s position was filled by another person. RW1 explained that the Appellant was sent on leave to utilise his accumulated leave days as there was no provision for commutation in the company. That after the leave, the Appellant was called to resume work but the Appellant did not report back for work and he had already commenced legal proceedings against the Respondent. Mr. Mulenga, Counsel for the Appellant relied on the filed Heads of Argument. On behalf of the Appellant, Mr. Mulenga advanced two grounds of appeal:- 1. The Court below erred in law when it found as a fact that the appellant accumulated 146 (one hundred and forty six) leave days and was placed on forced leave for 30 (thirty) days which upon expiry was extended for further 30 (thirty) days; however, failed to make an order that the appellant was entitled to be paid for the remainder of the 86 (eighty six) leave days. 2. The lower Court erred in law and fact in holding that “the sending of the Appellant on forced leave did not amount to constructive dismissal because the Respondent wanted the Appellant to exhaust his leave days, further that the argument that the Respondent used a payment voucher as opposed to J4 & a pay slip is neither here nor there. What was cardinal was whether or not he was paid.... Using a payment voucher instead of a payslip in our view does not constitute a radical change in the complainant’s conditions of employment.” In support of ground one, it was submitted that the Court below erred in not ordering that the Appellant was entitled to be paid the balance of his leave days, that is 86 (eighty six) days. Counsel argued that the lower Court found that the Appellant had accumulated 146 (one hundred and forty sixty) leave days at the time he went on forced leave. That, therefore, the Court fell into error by failing to make the necessary order. Counsel submitted that the reasoning of the Court that the Respondent did not have any provision for commutation of leave days did not apply in a situation where an employee feels that his services have been constructively terminated and considers himself not to be part of the Company. In support of this argument, Cousnel placed reliance on Section 26 of the Employment Act which provides that: “Where an employee is summarily dismissed, he shall be paid on dismissal the wages and working or allowances due to him up to the date of dismissal.” J5 Counsel argued that the Appellant having left on grounds that he had been constructively dismissed from employment, the Court below should have likened him to an employee who had been summarily dismissed from employment and was, therefore, entitled to be paid his 86 (eighty six) accumulated leave days. In support of ground two, Counsel argued that the test applicable in cases of constructive dismissal is the test which was laid down in the case of Western Excavating (ECC) Ltd vs. Sharp.1 According to Counsel, the Respondent did the following which caused the Appellant to consider himself as constructively dismissed from employment: 1. On 15th January, 2008 of the Appellant was put on forced leave for 30 (thirty) days and upon expiry the same was extended for another 30 (thirty) days. Thereafter, the Appellant was not allowed to resume work. 2 2. The Appellant’s job or position was advertised by the Respondent and whilst on forced leave the Appellant’s position was filled by someone else. The Appellant told the Lower Court that he was not informed that his post or position was going to be advertised. J6 3. The Respondent, whilst the Appellant was on forced leave stopped paying him through a payslip (statement). They started paying him through a payment voucher. Reference page 36 (showing a pay statement for February 2008), page 28 (showing a payment voucher for the month of April 2008). It was argued that it was proved that the Appellant was constructively dismissed from employment, having regard to the fact that there were no leave forms filled and no specific date when the Appellant was to resume work. * Further, that the Respondent’s variation of the Appellant’s job amounted to constructive dismissal from employment He cited the case of Coleman and Baldwin2. That the change in the mode of payment of the Appellant’s salary amounted to constructive dismissal because the statutory obligations such as National Pension Scheme Authority (NAPSA) income tax to Zambia Revenue Authority (ZRA) and the Appellant’s contribution to Zambia State Insurance Corporation ( ZSIC) were not obviously indicated on the payment voucher. That the payment voucher was only showing the net pay and that this was contrary to the provisions of Section 45 and 50 of the Act. Counsel argued that the lower Court fell into error when it concluded that what was important was the fact that the Appellant was paid. Mr. Mulenga submitted that the lower Court should have appreciated that changing the mode of payment from a payslip to a payment voucher amounted to removing the Appellant from the payroll and/or violated the statutory requirements under the Act. We have considered the evidence on record, the Judgment appealed against and the submissions by learned Counsel for the Appellant. The gist of Counsel’s argument in ground one is that the Court after finding as a fact that the Appellant had accumulated 146 days leave should have proceeded to order that he be paid the balance of his leave days. We do not agree that the Court misdirected itself as argued by learned Counsel. The Court rightly found that it was prudent for the Appellant to utilise the accumulated leave days. The Court below found as a fact that there was no provision for commutation of leave days in the Appellant’s conditions of service and obviously it was in the Appellant’s favour to go on leave rather than lose his days. Our J8 perusal of the record shows that there were no submissions filed on behalf of the Appellant in spite of the Court having given an opportunity to both parties. Nevertheless, our considered view is that this is an issue which Counsel would have advanced before the trial Court. In any case, the claim before the trial Court was whether the Appellant was constructively dismissed or not and whether he was declared redundant. We take the view that the issue of the balance of his leave days is a matter which the Appellant should have taken up with the Respondent especially having regard to the fact that it was not in dispute that he had accumulated leave days. Mr. Mulenga also argued that the Appellant felt that he had been constructively dismissed. We take the view that employees should not act on feelings or emotions but rather on facts. In this case, the Appellant clearly misunderstood his position and left employment’ and he cannot now turn around and put blame on the Respondent who had invited him to resume work. In the case of Western Excavating (ECC)1 relied on by Mr. Mulenga, the employee requested for an afternoon off as per the provision in his contract. The employer denied the request on the J9 ground that there was a lot of work. However, the employee took the afternoon off and was subsequently dismissed. In particular reference to the legal concept of 'discharge by breach’ Lord Denning said: "If the employer is guilty of conduct which is a significant breach going to the root of the contract of employment, or which shows that the employer no longer intends to be bound by one or more of the essential terms of the contract, then the employee is entitled to treat himself as discharged from any further performance. If he does so, then he terminates the contract by reason of the employer’s conduct. He is constructively dismissed. The employee is entitled in those circumstances to leave at the instant without giving any notice at all or, alternatively, he may giv notice and say he is leaving at the end of the notice. But the conduct must in either case be sufficiently serious to entitle him to leave at once.” Clearly, the above case is not applicable to the present case if anything it favours the Respondent and in fact the employee was dismissed and then he sued. The Court found that the employer was not in breach and had not repudiated the contract. In this case, the Appellant left employment on his own accord and there was no breach on the part of the Respondent which could be described as going to the root of the contract of employment. The Appellant was aware that he was not qualified to hold the position of Procurement Officer and the Respondent’s J10 action of placing him in another department was to his benefit. In this way, he was not prejudiced as he continued to receive his salary. Looking at the facts, the Appellant created his own problem. Indeed, had he resumed work after his leave, as requested by the Respondent, the air would have been cleared. As to Counsel’s argument that the Appellant’s case should have been treated the same as an employee who had been summarily dismissed in terms of Section 26 of the Act, we cannot accede to this argument as it is totally misplaced. The evidence on record is clear that the Appellant treated himself as dismissed and left employment without any communication to this effect from the Respondent. Counsel’s submission that the Appellant was not allowed to return to work is a misapprehension of the facts found by the trial Court which are not perverse. Ground one, therefore, fails. We now turn to consider ground two which attacked the lower Court’s holding that "the sending of the Appellant on forced leave did not amount to constructive dismissal.” The lower Court took the view that there was nothing wrong in sending the Appellant on leave to exhaust his accumulated leave and in jii paying the Appellant using a payment voucher instead of a payslip. That the important thing was that the Appellant continued to receive his salary. In connection to this ground Counsel raised concern over the Respondent’s statutory obligations to ZRA, NAPSA and so on. In our view, these are issues which the Appellant ought to have resolved with the Respondent. In our view, failure to furnish an employee with a payslip or merely paying an employee the net pay cannot by any stretch of imagination amount to constructive dismissal. We agree with the lower Court that using a payment voucher instead of a payslip cannot constitute a radical change in one’s conditions of employment. And breach of Section 45 and 50 of the Act is definitely not an indication that the Appellant was constructively dismissed as suggested by Counsel. Ground two, therefore, fails. In conclusion, we find that the lower Court was on firm ground when it dismissed the Appellant’s claims as it is clear that he was not constructively dismissed and neither was he declared redundant. J12 In the premises, this appeal is dismissed for lack of merit. I, Costs to the Respondent to be taxed in default of agreement. D. K. CHIRWA ACTING DEPUTY CHIEF JUSTICE E. N. C. MUYOVWE SUPREME COURT JUDGE J13