First Quantum Mining and Operations Limited v Yendamoh (Appeal 206 of 2015) [2018] ZMSC 343 (15 August 2018)

J1 IN THE SUPREME COURT FOR LUSAKA APPEAL NO. 206/ 2015 HOLDEN AT KABWE SCZ/ 8/307/2015 CIVIL JURISDICTION AND APPELLANT OBBY YENDAMOH RESPONDENT Coram Wood , Kabuka and Mutuna, JJS On 7th August 2018 and 15th August 2018 For the Appellant N/A For the Respondent IN PERSON JUDGMENT Mu tuna, JS. delivered the judgm ent of the Court. Cases referred to: 1) Attorney-General v Richard Jackson Phiri {1988/89) Z. R . 121 , 2) Zambia Eleptricity SupplY. Corporation , Limited v Lµbasi Muyambango {2006) ZR 22 3) Caroline Tomaidah Daka v Zambia National Commercial Bank Limited Plc {High C~urt Judgment of.31st December, ~012) I I I I ·, 4) Dennis Chansa v Barclays Bank SCZ/8/128/2011 ·, 'I ', 5) Kafue District Council v J ames Chipulu SCZ Judgment No. 51 of 6) Chilanga Cement v Kasote Singogo (2009) ZR 122 7) Browne v Dunn ( 1893) 6 R 67 (HL) 8) United States v Salermo 481 US 739 9) Tolani Zulu and Musa Hamwala v Barclays SCZ judgment No. 17 of 10) Fartinol Nkandu v Cargo Management Services Limited Appeal No. 139 of 2009 11) Chintu Kanga (Suing as administrator of the estate of Godfrey Locha) v Zambia Revenue Authority Appeal No. 194 of 2015 12) Dennis Chansa v Barclays Bank of Zambia Plc Statute r eferred to: 1) Industrial and Labour Relations Act, Cap 269 Other a u thorities referred to: 1) Chitty on Contracts - volume 1, 29th edition by H . G. Beale , QC, general editor, London, Sweet and Maxwell ' 2) Black's Law· Dictionary, 9th ' edition by Bryan A. Garner, Thomson West USA Introduction 1) The r elatio11ship of emgloye r and e,:nployee 1s governed by te rms a nd conditions of service which ·, often times contain a disciplinary cod e . ·, This disciplinary code contains the vanou s offences ·, '' I J3 which an employee is likely to commit and the penalties for such offences. 2) The question that arises from the foregoing is the level at which an employer is p ermitted by the law to invoke the provisions of the disciplinary code . That is to say, is an employer, like an automaton, permitted to invoke the prov1s1ons of the disciplinary code to the letter whenever an employee appears to have committed an offence without having regard to mitigating factors. 3) This is the question which is posed by this appeal which arises from ·a decision o(the Industria'i and Labour Division of the High Court (erstwhile Industria l Relations Court) by which the Respondent's claim for unlawful and unfair .. dismissal was upheld . ~ ~ .. . . •• J4 4) The appeal a lso discusses the extent to which an employer is compelled to abide by the rules of natural justice when invoking the power to terminate an employee's employment. Background 5) The facts of this case are that the Respondent wa s employed by the Appellant in November 2006 as a Spotter 1n Solwezi. In the course of his employment he rose to the rank of Person In Charge (PIC). 6) ·, ·, On 17th April 20 14, the Respondent was involved \ \ \ ' in a road traffic accident a long the Solwezi Chingola road which resulted in injury to a • pedestrian. As a result of• this, the p edestrian was • taken to Chingola Hospital while the Respondent \Vas ··detain ed at Cbingola Polic~ Station. ', ·, JS 7) On the night of 17th April 2014, the Respondent made frantic attempts to contact his superiors to inform them of his predicament and seek leave of absence. Later he was informed by the person who stood in for him as PI C to send the Police Bond Report to the Appellant for purposes of facilita ting an application for leave. No formal communication was made to him in respect of the a pplica tion . 8) Subsequently, on 20th April 2014, the Responde nt was r eleased from custody a nd directed by t h e Police to m ake frequent checks· on the p e d estrian a nd settle his medical bills, who at this stage h ad been transferred to Ndola Central Hospita l. 9) In complia nce with the directive from the Police he ·, continued to check on t he pe9-estrian and . settle I ·1 I I his bills. In d oing so, he s p ent nights a t the J6 hos pital at Ndola, on the insistence of the pedestrian's relatives, while the pedestrian's s pouse spent days with him. 10) During this episod e, he continued to inform his supenors of the position he was 1n. This notwithstanding, on 8th May, 2014 the Appellant terminated the Respondent's employm ent on grounds of desertion. 11) The Res pondent a ppealed against the te rmination of employment a nd was r equested to a tte nd an a ppeal h earing on 11 th June 2014. After the h earing, the Appellant wrote to the Respondent on . 16th June 2014, informing him that his appeal had b een d eclined. This did not please the Re sponde nt, prompting him to commence an .. action aga~nst the Appe~ lant in the C~urt below. ., ·, ', ', ·, ., ·, J7 The Respondent's claim and Appellant's defence in the Court below 12) The claim by the Respondent was by way of a notice of complaint pursuant to section 85(4) of the Industrial a nd Labour R elations Act and he sought the reliefs of damages for unlawful dismissal, r einstatement and any other relief the Court deem ed fit. 13) The basis upon which th e Respondent made the claim was that the Appellant had unlawfully and unfairly dismissed him from employment. 14) The Appellant denied the claim and contended that the te rmination of the Respondent's e mployment was by way of summary dismissal I I I I on account of gross misconduct. According, to the ·, Appellant,, the Respondent had absconded from·, ·, ', '' ·, '' J8 work without official leave for a period of more than five days. 15) The Appellant explained that although the Respondent had furnished it with a police bond confirming his a rrest and detention, th e Respondent did not explain the conditions of such police bond. It contended further that the App ella nt followed it s d isciplinary p rocedure prior to termin ating the Resp ondent's employment in that he was a llowed to appeal following which, a n appeal hearing was h eld which resolved to dismiss the Respondent. The evidence pre sent e d by the parti es in t he Court below • 16) The parties presented their evidence by way of affidavits in support and opposition to the notice ~ ~ ~ ~ ., ·, '' ·, ·, '' J9 of complaint and viva voce e vidence a t the h earing . 17) The Respondent's evidence set out the events leading up to his arrest and d etention by the Chingola Police a nd the s ubsequent stay at Ndola Central Hospital a ttending to the pedestrian. 18) The crucial evidence wa s in the viva voce evid e nce stating the efforts the Respondent made after his a rrest to contact his superiors. The evidence a lso r evealed that as p e r the discussion he h a d with one of his s upe riors, h e had sent a copy of his police bond to prove the' arrest effe cted upon him. Further, it set out the change 1n his circums ta nces when h e was directed by the police to be by the pedestrian's bedside and his attempt at this stage to apply fqr leave. I I ·, ', ·, ·, ', n o 19) Likewise, the evidence, both affidavit an d viva voce) led by the Appellant was 1n line with the undisputed facts of this case. The t e stimon y of RWl, one Michael Ngoma, the Respondent 's sup ervisor confirmed that he received a copy of the Police Bond from the Responde nt a nd that he a pplie d for leave on b eh a lf of the Respondent based on the Police Bond but it was d e nied . 20) The evidence a lso revealed that 1n its determina tion of the Respondent's case, the appeal committee considered the warning which the · Appe llant had given the · Responde nt ' in a n earlier incident of absenteeism. Consideration and decision by the Court below • 2 1) The Court b elow b egan its determination of the m a tter by setting out the undis p u ted facts' which ·, are, by and large, in line with the undis. Puted ', . ' ', ' ·, '' Jll facts we have set out 1n the earlier p a rt of this judgment save for two oth e r findings . These were that : the disciplinary action against the Re spondent was not p reced ed by a disciplinary hearing by a disciplinary committee ; and the Appellant's disciplinary cod e do es not h a ve provis ion for consideration of the reasons for an e mployee's absence or efforts made by such an e mployee to fill in leave forms. 22) The Court below then framed th e issue for dete rmination as b ein g whe ther or not the Res'pondent ' was unlawfully and unfairly dismissed? In respect of the consideration of unlawful dis missal, the Court stated that in considering the iss ue, it mus t look at the ·, ·, form of '1 the dismissal vis a vis t h e disc ~plinary °1 '1 I ·, procedure . It referred to our d ecisions in the cases '' ., ·, ·, of Attorney General v Richard Jackson Phiri 1 and Zambia Electricity Supply Corporation L imited v Lubasi Muyambango2 where we held that in considering the issue of unfair dismissal the Court should not act as an appellate tribunal from the de cision of the disciplinary committee. That the duty of a Court is limited to determining whether there was necessa ry power to act by the disciplinary committee and if such power was exercised properly. 23) The Court concluded by setting out the questions a 'Court should ask itself In making the determina tion. 24) Turning its attention to what constitutes unfair dismissal, the Court relied on is finding in the case of Caroline Tomaidah Daka v Zambia ) ) ) ) ) National Commercial Bank3 where it observed J13 that unfair dismissal a n ses from s t atutory provisions and involve s the protection of the right to e mploymen t and advancement of fair labour practices. This entails the r equirement of the employer to terminate t he contract of employment only on s pecified grounds and provision of the rare remedy of reins t atement. 25) To this end, the Court found that in considering whether or not there was unfair dismissal, it must determine t he m erits a nd demerits of the dismissal. That is to say, are the reasons given for the· dis miss just? The Court expla ined further that contracts of employme n t should only be terminated if reasons exist for doing so based on the conduct , cap acity of the worker or operational .. ·, requirements of .the business .. I I I ·, '' ', ·, ·, ·, Jl4 26) After explaining the legal position as we have set out 1n the preceding paragraphs, the Court considered the evidence and fou n d that the termination of the Responde nt's e mployment by way of summary dismissal was not only wrongful but unfair. It based its findin g on the fact that the tenets of natura l justice were contravened as follows: 26.1 The summary dismissal resulted in the neglect by the Appellant to fulfill conditions precedent to the dismissal being: the charging of the Respondent; giving him an opportunity to exculpate himself; and an opportunity to be heard by the disciplinary committee; 26.2 Although the offence the Respondent was charged with prescribes a penalty of summary dismissal in accordance with clause 1 of the Disciplinary Code, the Respondent 's absence from work resulted from events which were • beyond his control, which the •Appellant's management was aware of. As such, the rules of national justice required that he should have been given an opportunity to explain the circum~tances that he ·,found himself in. The Court stated further that the Appellant's '' management knew where the Respondent was and t hat ', ', '' Jl S he could not complete the leave forms which were in Solwezi whilst he was at Chingola p olice station. 26.3 The conduct of the Appellant's management , as revealed by the evidence of RWl was suspicious and shows that it had made up its mind to dismiss the Respondent . The Court formed this opinion from RWl 's e vidence which was that when he approached his imm ediate supervisor to apply for leave for the Respondent, the supervisor declined the application · on the ground that the Respondent was in the habit of absconding from work. 27) Having found tha t the Respondent's dismissal was wrongful and unfair, the Court considered the remedy to award the Re s ponde nt and declin ed to order r eins t atement in view of the hostility which the Appellant's manage ment h a d d isplayed towards the Responden t. In its place , the Court awarded th e Respondent the following: twenty four months' salary as d a mages for wrongful dismissal; a nd twe lve months ' sala ry as ·, compens p.tion for unf(1ir dismissal-, The b as is of the award was our d ecisions 1n the cases of 'I J16 Dennis Cha nsa v Barclays Bank 4 , Kafue District Council v James Chipulu 5 and Chilanga Cement v Kasote Singogo6 w h ose award s we have discussed in t h e latter part of this judgment. 28) Th e Court a lso awarded t h e Respondent interest on these monetary awards at the short te rm commercia l b a nk rate from the 16th October, 2014 to the date of judgment, thereafter, at the current lending rate as determined by Bank of Zambia. Grounds of appeal to this Court and argument s by the parties 29) The Appellant is, aggrieved bye th e decision• of the Court below and has laun ched this appeal on six ·, ·, ground s 'as follows: ·, ·, ·, ·, ·, J17 29. 1 The Court below e rred at law and in fact by failing to c ons ider the provisions of Appellan t's d isciplinary code in relation to the penalty for being away from work without leave; 29.2 The Cou r t below m is d irected itse lf in failing to make a finding t h a t t he r espondent had not b een grante d leave t o b e away from the office; 2 9. 3 The Court below erred in law and in fact when it held that the Respondent's termina tion of employment by way of summa ry dis missal w a s both wrongful and unfair on the ground that the tenets of n atural justice were contravened; 29.4 The Court below erred at la w and in fact when it held that the rules of natural jus tice are applicable in all c ases ; 29.5 The Court below misdirected itself by holding that the rules of natural justice were breached by not holding a hearing when in fact the R e spondent had been accorded . ' . an adequate h e aring at appeal stage ; 29.6 The Court below misdirected itself by failing to take into account that by not abiding by the proce dure for obtaining l e ave from his employer and instead followed , the directive of the police whicH had no legal ba~king the Respondent assume d the risk of being dis missed from e mploymen t. ·, ·, ·, ', ·, '' ·, '' ·, '' J18 30) The Appellant argued grounds 1 and 2 of the appeal together and these we re that the relationship b etween the parties was governed by terms and conditions of employment which contained a disciplinary code of conduct . It was an expr ess t erm of the contract that prior to going on leave the Respondent was r equired to formally apply for , and obtain leave. 3 1) According to the Appellant , the evidence on record r eveals that the Respondent did not a pply for leave prior to going on leave and, as such, the Appella nt was entitled to invoke t he provisions of the d isciplina ry code which prescribed dismissal for such an infraction. Further, the parties were both bound by the provisions of the disciplinary ·, ·, code, therefore, the Court could not invoke rules ~ ~ ~ ) of natural justice 1n place of the procedure ·- '' J19 provid ed fo r 1n th e dis ciplinary code . The Appellant d rew our a tte ntion t o the case of Maclean v The Workers Union 7 1n which Ma r gh a n J held a t p age 62 3 that whe re a contr act b e tween the p arties sets out procedural rules governing the m, the Court cannot invoke the rules of n a tural justice a s a substitute t o the terms of the contract. 32) The Appella nt als o r efer red to section 36(l)(c) of the Employment Act which s ta t es inter alia a s follow s : "36(1) A Written Contract of Service shall be terminated - a) b) c) In any other manner in which a contract of service I may be lawfully I terminated or deemed I I to be terminated whether under the provisions of this Act or otherwise." ·, ·, ·, ·, Her e, the Appella nt's contention was tha t the Court below misdirected itself when it found tha t ·, ·, ·, ·, J20 the termination was wrongful and unfair despite the Respondent's employment being terminated in accordance with the agreement of the p arties. 33) In addition, the Appellant argued that the unchallenged evidence of RW3 revealed that the Respondent did not r equest him to apply for leave of his behalf. There was no attempt on the part of the Respondent to discredit this evidence by way of cross examination as such , the Court was at liberty to regard the said evidence as undisputed. We were referred to the cases of Browne v Dunn7 in regard . to this latter submission and United States v Salermo8 where Steven J stated the purpose of cross examination • as being to • undermine the opponent's evidence. ·, 34) The Appellant, concluded arguments on, the two grounds of appeal by defining a con tract in the '' '' ·, ·, ·, ·, J21 context that it g1ves nse to obligations by the parties which are enforceable. Regard was had to the definition of the word in Chitty on Contracts General Principles and Black's Law Dictionary. 35) Turning to grounds 3 and 5 of the appeal, the a r gument by the Appellant was simply this , that there was no breach of the rules of n atural justice by it 1n effecting t he Respondent's dismissa l because he was given an opportunity to be h eard. This is clear from the evidence on r ecord which reveals that after the Respondent was served with the dismissal letter he was invited to a h earing of the app eals committee. That in a ffor ding the Respondent the said h earing ·, ', the Appellant acted 1n ~onformity with our ' ~ ~ decision in the case of Tolani Zulu and Musa ·, ·, ·, ·, ·, ·, J22 Hamwala v Ba rc lay s Bank L imited9 where we set out the prov1s1ons of section 2 6A of the Employment Act and Article of the International Labour Organisation which state the need for an employer to give an employee opportunity to be heard prior to terminating this employment on the grounds of conduct. 36) Under groun d 4 of the app eal, the Appellant argued in the alternative that even assuming that it omitted to apply t h e rules of natural justice, it was on firm ground 1n terminating the Respondent's employment because he committ'ed a dismissible offence. The Appellant relied on our decision in the case of Fartinol Nkandu v Cargo Management Services Limited 10 in which we reaffirmed an earlier decision that where an ~ ~ ~ ~ e mployee has committed an offence for which he ·, ·, ·, ·, J23 can be dismissed, no injustice anses from failure by t he employer to co111ply with the agreed procedure for dismissal and such an employee has no claim on that ground for wrongful dismissal or a declaration that the dismissal is a nullity. 37) The arguments concluded by setting out authorities which state that an employee may be summarily dismissed if he willfully disobeys any lawful and r easonable order of the employer. We have not reproduced the said arguments because of the r'easons which are apparent in the portion of this judgment which deals with ground 4 of the appeal. 38) Coming to ground 6 of the appeal, which was the last ground of appeal, the Appellant esse ntially ~ ~ ~ ~ ~ reviewed the evidence led in the Court below as it J24 related to the directive given to the Respondent to attend to the pedestrian and the findings of fact made by the Court as a conseque nce thereof. It concluded by attacking the findings of fact on the ground that they were not made on a proper review of the facts and were such that on a proper r eview of the evidence , no trial Court could make . 39) In respon se, the Respondent in his heads of a rgument did not make any legal arguments but m erely recounted a nd r eviewed the facts of this case. This is underst and a ble as he is lay a nd opte d to r epresent · himself. We h ave riot reproduced the contents of his h ead s of argume nt because the facts of this case are 1n any eve nt, by and large, not in dispute . 40) ~ At the h earing, in · his viva voce argum e nts, th e ~ ~ ~ ~ Respondent requested us to expunge the ·, ·, J2 5 supplementary heads of argument filed by the Appellant from the record as they introduced legal issues that were not before the High Court. Consideration by this Court and decision 41) . In our consideration of this appeal, we have only . dealt with grounds 1, 2, 3 and 5 of the appeal. We have not dealt with t he m erits and demerits of grounds 4 and 6 of the appeal b ecause the issue under the former was not argued in the Court below, whilst the issue under the latter question findings of fact, which cannot be the s ubject of ' ' ' appeal in view of the Division from which the appeal emanated. 42) We also hasteia to add that. at the hearimg of the appeal the Appellant was not represented by ·, coun sel who opted to file a 'notice of :r{on attendan ce in accordance with our rules. We were ', ', ', ', ' . . , J26 the ref ore, not able to ascertain from counsel whether or not the Appellant had filed supplementary heads of arg1.1me nt referred to by the Respondent in his viva voce a r guments. Our efforts to locate these supplementary heads of argument on the record drew a blank. We have thus not referred to them in our determination of the appeal. 43) For purposes of clarity, the ar guments advan ced by the Appellant under ground 4 are that even assuming the Appellant did breach the rules of natural jus tice, it was justified in dism'issing the Respondent because the offence he committed was in any event a dismissible one . We a re of the firm view that this argume n t is at odds with the '1 ) ~ ~ ~ ~ argument and evidence led in the Court below which was that the Appellant complied with the '' ·, ·, ·, '' '' . ' ' J27 rules of natural justice because it gave the Respondent an opportunity to be heard 1n effecting his dismissal by way of the hearing on appeal. The Appellant did not advance the alternative argument being canvassed now. 44) In relation to ground 6 of the appeal, we have said in a plethora of authorities, most r ecently in our decision in the case of Chintu Kanga (suing as administrator of the estate of Godfrey Locha) v Zambia Revenue Authority12, that an appeal to this Court from the Industria l and Labour Division of the High Court can not be entertained where it only questions findings of fact. This a rises from the provisions of section 97 of the Industrial and Labour Relations Act ·, which only a llows appeals on points of law or any ) ~ ~ ~ ~ point of mixed law and fact. ', '' . ' ' J28 45) This brings us to grounds 1 , 2, 3 and 5 of the appeal. These grounds raise two issues namely: whether or not the Appellant ought to have followed the rules of natural justice prior to dismissing the Respondent; and whether or not the Court below misdirected itself when it found that the Appellant ought to have considered the reasons for the Respondent's absence from work, despite the mandatory sanction prescribed in the Disciplinary code of summary dismissal, for first breach . 46) We must state from the outset that we agree with the findings by the Court below that wrongful dismissal addresses the procedure adopted in effecting the dismissal whilst unfair dismissal I I I I I I addresses the genu1ness or otherwise for the ·, dismissal. We also agr ee that 1n dealing with . ' ·, ·, ' ' l . ' . J29 wrongful dismissal a Court should n ot act as an appellate tribunal, but rather examine if the procedure prior to dismissal was correct and if the constitution of the disciplinary committee was 1n accordance with the disciplinary code. 4 7) Turning to the first issue on compliance with the rules of natural justice, the Appellant has contended that it complied with the rules because it afforded the Respondent a n opportunity to be heard at the appeal stage. 48) The findings by the Court below were th at the evide n ce on ' r ecord revealed that the' letter of dis missal "blocked" the a dheren ce by the Appellant to the rules of natural justice. We agree with this findin g because the eviden ce reveals that the Respondent was not charged prior to his ~ ~ ~ ~ ~ dismissal and neither was he invited to exculpate ·, '' ·, • I I J30 himself or appear before a disciplinary committee. These are the basic tenets of natural justice which the Appellant failed to comply with . 49) It was not enough for the Appellant to merely a fford the Respondent a n opportunity to be h eard only at th e appeal stage. We, therefore, hold tha t the Court below was on firm ground when it found that the dis missal was wrongful especially that, and as a r gu ed by the Appella nt, an employee is entitled to be h eard prior to his dismissal based on conduct pursuant to section 2 6A of the Employment Act (a s amended 1997)'. 50) Coming to the second issue which deals with the finding by the Court tha t the Appella n t should h ave cons ider ed the reason s for the Resp ondent's a b sen ce from work . The s ta rting point h ere is to ) ) ~ recognize the fact tha t the d isciplinary code ·, ·, ·, ·, ., ·, . ' . ' Bl prescribes the mandatory penalty of summary dismissal for the offence for which the Responde nt was dismissed. The Appellant h as , in this regard, argued that the provisions of the code being the terms and conditions upon w hich the Respondent's contract of employment was anchor e d are binding on him and should be enf arced to the letter. 51) We would like to begin b y revisiting the reasoning by the Court below after it considered the evidence. The relevant portion is at page 27 of the record of a ppeal and it is the one riumbered (iii) · and (iv) which states in part as follows: "While it is appreciated that the offence of 'Absent 'Without Official' Leave (AWOL) fo'r 5 days or mor~, under Clause 1 of the [Appellant's) disciplinary Code, carries a penalty of summary Dismissal, the Respondent's absence from '*ork for more th~n 5 days was be'yond his control'; and the Appellant's manage ment knew this fact which . ' ', ·, . ' ·, . , , ' J32 should have warranted the rules of natural justice to be invoked ... The Appellant's top management's conduct in this matter is quite suspicious and raise s eye brows and a lot of questions, in that all the effort the [Respondent] made to inform the [Appellant) about his predicament /whereabouts, and efforts he made to have his official leave granted was not considered and was totally ignored. It shows they already had a fixed state of mind about the [Respondent] and granting him no room to be heard." 52) The foregoing was the basis upon which the Respondent was found to h a ve bee n unfa irly dismissed as the Court below did not accept a s genuine the reason adva n ced for the dismissa l. 53) . We agree entirely with the rea soning of the Court. b elow b ecause a lthough a s Courts we are bound to enforce the t e rms and conditions of a contrac t b etween p a rties, ' we can only do so whe'n the .. pers on see king to e nforce the is acting •• r easona bly a nd t h e s aid actions a re supporte d by ·, ·, terms .. '' ·, r eleva nt evide n ce. In •this case as. the Court ,, . , .. .. J33 below correctly ob served, the eviden ce reveals that the Respondent found himself 1n a hopeless s ituation which h e sou ght to r emedy by immediately informing his employer a nd seek officia l leave. Despite this, the Appellant unreasonably declined to grant the leave and in so doing created a situation that would put the Res pondent squarely within the rea lms of cla use 1 of the disciplinary code. We say the Appellant created this situation b ecause by definition ''AWOL" is a b sent without leave; or missing without n·otice or permission (see Black's Law· Dictionary) . The latter part of t h e definition d enotes that if notice is given fo r ones abse n ce, as was given by t h e Respondent to the Appellant, one is not AWOL. ·, 'I 'I ' I ·, ·, ·, ' I ·, ', J34 54) To the extent, therefore, that the reason given for the dismissal w as not genuin e , the Cou r t b e low did not misdirect itself when it found that the Respondent was unfairly dismisse d . 55) Consequently, this a ppeal lacks m erit 1n respect of the findings under wrongful and unfair dis missal. The m atters however , do not end there because, the Court below went on to award two remedies, that is twenty four months' damages for wrongful dis missal a nd twelve months' salary as compensation for unfair dismissal. 56) The position we h ave taken is' that the two 'awards were wrong in principle beca u se they a rise out of one compensatory event, which is the loss of employment. In granting the two awards the Court below justified them with the fact t h at r e •• ·, .. . . instatem ent was inappropriate a nd tha t ther e 1s . ,, ."') J3 5 scarcity of jobs on the la bour market. The Cou rt relied on a number of our d e cisions to justify the awards. 57) The first of such decision was Dennis Chansa v Barclays Bank of Za mbia Plc13 in which we upheld an award of thirty six months salary as d a mages on the ground tha t with passage of time our awards must increase because the global economies deteriorate the chances of finding e mploy m ent . 58) The r e is a clear distin ction b etween the principle applied in the award by the . Court below, which we upheld, in the Dennis Chansa case and the one in this case by the Court below in that in the form er, the thirty six month salary award wa s a s ingle award for a single or one compensatory' event. In essence, the fact that a s ingle compensatory e;vent had bee:u proved by two facts , i. e. w rongful dismissal and unfair dismissal does '' not-mean two r e m edies s hould, be awarde d . ·, • I I • J36 59) What we have said in the preceding paragraph must be distinguished from what we said in the Kafue District Council v Chip ulu case which is the second decision the Court below relied upon. In that case we upheld the decision of the lower Court awarding various monetary amounts as damages. These were, inter alia, for inconvenience and mental torture arising out of the appellant's failure to recruit the Respondent. These were proper awards because they were given in respect of the various damages proved to have been s uffered by the Respondent. To this extent, the case is distinguishable from this appeal. Likewise, the decision 1n the Singogo case 1s a lso d istinguishable because we only upheld one award of twenty four month s a lary as damages and struck down the award of six months pay for mental torture. 60) In the ordinar~ course of things we would have been compelled to strike down t he two awards by the Court below. We h ave not done so because, ) ) ) ) the quantum of da mages i.e. thirty six months is ', 1n conformity with our decision 1n the case of ', ', ', ', J37 Dennis Chansa v Barclays Bank of Za mbia Plc where we expressed the need for awards to increase b ecause the scarcity of employment 1s higher by the day on a ccount of d eterioration of the global economy. Conclusion 61) We accordingly find no merit whatsoever 1n the appeal and dismiss it with costs. The same are to b e taxed in default of a greement. A. M. SUPREME COURT JUDGE ~ ·~-- - r _:, . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . J. K. KABUKA SUPREME COURT JUDGE -- • ·, ·, ', -- ·, ', ·, ·,