Chisanga v Bell Equipment Zambia Limited (Appeal 203 of 2013) [2016] ZMSC 148 (18 May 2016)

• IN THE SUPREME COURT FOR ZAMBIA Appeal No.203j2013 J1 HOLDEN AT LUSAKA BETWEEN: PATRICIA KAFULA CHISANGA APPELLANT AND BELL EQUIPMENT ZAMBIA LIMITED RESPONDENT Coram: Mambilima CJ, Kaoma and Mutuna, JJS. On the lOth day of May 2016 and on the 18th day of :\1ay 2016 For the Appellant: For the Respondent: Nj A Nj A JUDGMENT Mutuna JS, delivered the Judgment of the court. Cases referred to: 1. The Minister of Home affairs, The Attorney General vs. Lee Habasonda suing on his own behalf and on behalf of the Southern African Centre for the Constructive Resolution of Disputes SCZ No. 230f2007 2. James Matale vs. Zambia Consolidated Copper Mines Pic (1995 - 1997) ZR 144 3. Brogden vs Metropolitan Railways (1877) AC 666 4. Joseph Mutaba Tobo Vs The People (1990 - 1992) ZR 140 (SC) 5. Konkola Copper Mines vs Kakenenwa Muyangwa Appeal .vo. 31 of • J2 6. Konkola Copper Mines Plc vs Mainda Mwiinga Nchimunya SCZ/8j243/2009 7. Sam Amos Mumba vs Zambia Fisheries and Fish Marketing Corporation Limted (1980) ZR 136 8. D. P. P vs Ng'andu and Others SCZ Judgment No. 50 of 1995 9. D. P. P vs Chibwe SCZ Judgment No. 57 of 1975 10. Kalusha Bwalya vs Chardore Properties and Ian Chamunora Nyalungwe Haluperi SCZ/8/296/2013 11. Holmes Limited vs Buildwell Construction Company Limited (1973) ZR 97 Legislation referred to: 1) Employment 2) The Industrial of Zambia (Amendment) Act No. 15 of 1997 and Labour Relations Act, Chapter 269 of the Laws In this appeal we shall refer to the parties as they were referred to in the court below. That is, the AppeJant as Complainant and Respondent as such. This is an appeal by the Complainant against the decision of the Industrial Relations Court, dismissing her claim against the Respondent for unfair and wrongful dismissal. The Complainant had also claimed for: reinstatement to her former position; payment of all salaries and allowances from the date of the purported J3 dismissal to date of reinstatement; and alternati';ely; that she be deemed to have been declared redundant and be paid a redundancy package; an order compelling the Respondent to retire her and pay her retirement benefits calculated at the rate of three months pay for each year of service, or order that the Respondent pays damages or compensation to her for psychological stress and trauma; K750:000.00 ten years service award, ten years serVIce certificate; and interest on all monetary awards. The background leading up to this appeal is as follows: The Complainant, who is an accountant by profession, was employed by the Respondent as Financial Accountant on 2nd Janua::-y, 2001. Sometime around the year 2005, the Complainant was appointed to act in the position of Finance and Administration Manager for administrative purposes, following the resignation of one, Emmanuel Mbambiko. She acted in this position for some time and was durir_g that period referred to as Finance and Administration Manager. On 11th April, 2006, the Respondent wrote to the Complainant confirming her in the position of Administrative Manager. J4 In the year 2012, the Complainant was transferred to the Respondent's Solwezi branch in the same capacity of Admi:listrative Manager. The Complainant resisted the trans:er because she felt that by the said transfer her conditions of service were being reduced. This was based on her contention that she was being transferred to Solwezi in the capacity of Administrative Manager and not Finance and Administration Manager. The Complainant also set a condition that if she was to be transferred to Solwezi, she should first be paid all her service benefits for the ten years she had served. This prompted, the Respondent, on 2nd March, 2012 to give the Complainant a months' notice of termination of employment and upon termination, paid the Complainant her dues in full. After the Complainant's services were terminated and on 13:h March, 2012, the Respondent's managing director wrote to the Minister of Commerce and Industry informing him on the operations of the Respondent and the difficulties it was encountering in the said operations, as a consequence of frequent visits by officers from the Department of Immigrations. The letter also explained how the former Finance and Administration Manager r_ad been J5 oven:\:helmed with work which resulted in the need to find a replacemer_t. The Complainant was aggrieved by the termination of her employo.ent and took out an action against the Respondent in the court below. The gist of her claim and evidence, was that she was employed by the Respondent on 2nd January, 2001 as Financial Accountant. In October, 2005, when the Finance and Administration Manager resigned, she was appointed to act in the position for administrative purposes. Later the position was advertised internally -:JY the Respondent, prompting the CorLplainant to apply for the position. She was formally appointed to act in the position of Finance and Administration Manager for a probationary period of two months. Upon expiry of the probationary period, she was confirmed in the position on 1st Ap::-il,2006. T~1.e Complainant contended further that on 21 st February, 2012, she was transferred to Solwezi at short notice under harsh conditions and in the lower capacity of Administrative Manager. She therefore, sought clarification from the managing director, who insisted that she relocate to Solwezi. That later, she was dismissed from employment J6 despite expressmg willingness to relocate to Solwezi on condition that she was given a new contract of service. The gist of the evidence by the Respondent and contentions in the court below, were that the transfer of the Complainant to Solwezi was in line with her conditions of service and in a similar capacity as she was serving at head office. That the termination of the Complainant's employment was in line with her conditions of service upon her refusal to be transferred to Solwezi. Mter the lower court considered the evidence and arguments, it dismissed the Complainant's complaint. The basis upon which it dismissed the complaint was that it found that be Complainant had agreed in her letter of appointment to be flexible with regard to transfers to other operations or functions. As such, the transfer to Solwezi was not, in the opinion of the court below, a change in her conditions of service which brought her employment to an end. '='hat contractually the Respondent was entitled to transfer the Complainant. The court below also found that the Ccmplainant was employed as Administrative Manager and not Finance and Administration Manager. It also found J7 that the Complainant initiated the termination of her employment. Having ':Jeen aggrieved by the foregoing findings the Comrlaincnt appealed and launched 9 grounds as follows: 1) The trial court fell in serious error in law and fact when it failed to adjudicate on all the issues raised by the Comp"iainant and only adopted for Judgment the Respondent's submissions and thereby ignoring totally the issues raised and evidence adduced by the Complainant 2) The trial court erred both in law and fact by failing to consider the plea of unfair dismissal without a hearing pleaded by the Complainant 3) TI1e trial court erred in both fact and law wheT'. it failed to consider the plea made by the Complainant that she iL'as being transferred from a superior position at headquarters to an inferior position at Solwezi 4) The trial court erred both in law and fact when it failed to consider the Claimant's plea that her transfer was a cunning way of demoting her 5) The triell court erred both in law and fact when it failed to consider the overwhelming evidence that her J8 termination was not because of her reluctance to transf'er her but that this was decided on mud: earlier 6) l'he trial court erred both in law and fact whe~ it failed to consider the mandatory terms of section 26A of the Employment (Amendment) Act NO.15 of 1997 as against contractual termination 7) The trial court misdirected itself in law and fact by failing to take sufficient cognizance of the fact that the request to be paid terminal benefits was merely a reaction to the Respondent's variation of her major conditions of service 8) The trial court seriously misdirect itself in law and fact when it held that there was insufficient evidenc:e on the p!ea of discrimination on the basis of race as pleaded by the Complainant in view of the overwhelming evidence in support of the plea 9) The tnal court seriously misdirected itself when it held th_at the Complainant was not Finance and Administration Manager in view of the overwhelming evidence adduced on the point. At the hearing of the appeal the two parties we:-enot in attendance but they both had filed heads of argument in J9 supp'Jrt and opposition of the appeal. The Respondent's counsel had also filed a notice of non attendance. Our determination of this appeal is therefore based on the heads of argument filed. The gist of the arguments by counsel for the Complain2.nt under ground 1 was that the judgment of the court below did not consider all the evidence tendered on all issues and does not contain findings of facts. It was argue:! th2.t the court below only adopted the submissions made by the Respondent with the result that the judgment is unbalanced and biased in favour of the Respondent. Counsel relied on the case of The Minister of Home Affairs and the Attorney General vs Lee Habasonda (suing on His Own Behalf and on behalf of Southern African Centre for the Constructive Resolution of Disputes) i. Counsel argued further that the jurisdiction of the court below in accordance with section of the Industrial and Labour Relation Act, is wide and permits the court to look behind the reasons given for the dismissal of an employee. Regard was given to the case of James Matale vs Zambia Consolidated Copper Mines Plc2 • As regards grounds 2, 5 and 6 counsel argued that the evidence on record shows that the Complainant was dismissed for reasons other than those given in the letter of dismissal. He argued that the dismissal was based on the performance of the Complainant as reflected in the Respondent's letter to the Minister of Commerce Trade and Industry which is at pages 87 to 91 of the record of appeal. Counsel a::-guedthat the termination having been based on performance it should have been effected in accordance with section 26A of the Employment (Amendment) Act No.15 of 1997. By the said section, it was argued, the employer is mandated to afford an employee an opportunity to be heard on the charges laid against him or her. It was counsel's argument that the evidence III the affidavit in opposition of the notice of complaint by one James Chan sa, in which it is alleged that the Complainant neglec:ed or refused to comply with the directive on the transfer, suggests that the Respondent's true intention was to dismiss the Complainant but chose to terminate by a months' notice. This position, it was argued furtl::er, was endorsed by the court below in its findings at page J9 of the judgment and page 15 of the record of appeal. J11 Counsel concluded that the provIsIOns of section 26A do n::>t give the employer an option to terminate by a months' n::>ticewhere the performance of the empbyee is at stake. b argumg grounds 3 and 4, counsel submitted that the transfer to Solwezi would reduce the Complainant's position and status in a major way. It was argued that an expert witness had shown that the administrative position at Solwezi was inferior to the one at headquarters and that most of the key administrative functions could only be execu~ed at headquarters. Further, that the evidence reveals that the Complainant had been the head of the Finance ar_d Administration Department for over six years and ~1.ad been attending management meetings and reporting to the managing director. That the transfer would mean that the Complainant would be reporting to a person who was her equal whilst she was stationed at the headquarters. It was argued that the court below did not consider the foregoing evidence when it determined the dispute as there are no findings of fact in respect thereof. In arguing ground 9, it was submitted that there was overwhelming evidence on record to show that the Complainant was the Finance and Administration Manager. That the Complainant was addressed as such in all internal memoranda as is evidence from the document at pages 70, 74, 81 and 82 of the record of appeal. It was argued that the Complainant took over from one Emmanuel Mbambiko in an acting position when he retired in the year 2005. Therefore, the purported transfer to Solwezi was a variation of her contract of service by way of demotion. This variation, it was argued was what repudiated the contract of employment. Counsel argued further that the court's finding that there was no letter of appointment written to the Complainant appointing her as Finance and Administration Manager does not confirm that she was not appointed as such. It was arguec. that a contract cc,n be made or varied by conduct of the parties from which the court can make an inference. In advancing the said argument counsel relied on the case of Brogden vs Metropolitan Railways3. As regards ground 8, counsel argued that although the Complainant had led evidence on discrimination on J13 account of race, the Respondent did not rebut the evidence. He argued that since the Respondent did not cross examine the Complainant on the said evidence or lead any evidence in chief, implies that the uncontested facts are proven. Reliance was made on the case of Joseph Mutaba Tobo vs The People4• It was counsel's submission that since the court below failed to make a specific finding of fact on the issue, the Complainant has been disadvantaged. Counsel prayed that the appeal should succeed. IL response to the arguments by the Complainant and arguing ground 1, counsel for the Respondent submitted that the judgment of the court below clearly shows that the court conside::-ed all the issues in contention. Further that the CO".lrtbelow analysed and determined all the issues in contention as is evidenced by the findings of fact it :nade as appears at :?age 15 of the record of appeal. It was c::mnsel's submission that the court below did not therefore, err in law or fact. As regards grounds 2, 5 and 6, counsel argued that the grounds of appeal as couched amount to an attack on J14 the findings of fact by the court below. This, it was argued, contravenes the provisions of section 94 of the Industrial and Labour Relations Act and the holding of this court in the cases of Konkola Copper Mines vs Kakenenwa MuyangwaS and Konkola Copper Mines PIc vs Mainda Mwiinga Nchimunya6• Counsel argued that the provisions of section 94 of the Industrial and Labour Relations Act and the findings in the two cases do not permit appeals to this court against findings of fact by the court below. Arguing in the alternative, counsel submitted that there was no unfair dismissal because the Respondent terminated the services of the Complainant at her behest. Counsel argued that the evidence on record clearly shows that the Complainant requested to be paid her accrued terminal benefits for the period of the contract she had served. The said benefits, it was argued, were duly paid thereby bringi::1g an end to the contract. Further that the new CO::1tractwas not given to the Complainant because a contract is a mutual agreement. In concluding arguments on these grounds, counsel submitted that the contents of the communication to the J15 Minister Vlere inconsequential as they were done post the termination initiated by the Complainant. That the same fate befell the provisions of section 26A of the Employment (Amendment Act) NO.15 of 1997. He argued, in respect of section 26A, that the Complainant was not subject to any disciplinary proceedings which would have pl3.ced an obligation upon the Respondent to allow her to be heard. T::J.egist of counsel's arguments under grounds 3 and 4 were that the conditions of employment that are on the record of appeal are what formed the basis of the contract of employrr_ent between the parties. That the said contract prescribed, among other things, the position which the Complainant had in the Respondent company which was that cf Administrative Manager. Therefore, an? other information regarding her position is extrinsic evidence, and as such, and, on the basis of the case of Sam Amos Mumba vs Zambia Fisheries and Fish Marketing Corporation Limited7, cannot be allowed to add to, vary or subtract fro:n the contents of the contract. The arguments revealed further that the Complainant has stc.ted that her contract had come to an end and requested for payment of her terminal benefits, The court below, it was argued, was therefore on firm ground when it made the findings it did on the issue. Arguing ground 8, counsel submitted that the court below was on firm ground in finding that the allegation of discrimination was irrelevant in the light of its finding that the termination of the contract was at the instance of the Complainan t. Counsel prayed that the appeal should be dismissed. In the heads of argument in reply to the Respondent's arguments, counsel for the Complainant focused on rebutting the allegation by the Respondent that the grounds of appeal attacked findings of fact and as such the appeal was untenable in accordance with section 94 of the Industrial and Labour Relations Act. In this regard, counsel argued that grounds 1 and 2 seek to address the failure by the court below to determine the true reason for the dismissal of the Complainant as contained in the letter addressed to the Minister by the Respondent's managing director. Counsel argued that there is no finding on the issue because it was simply ignored. It was also ::trgued that there are a number of authorities to the effect that a finding ,::>ffact becomes a question of law when it is not J17 supported by evidence or one which is made on analysis of facts which cannot reasonably be entertained. Our attention in this regard was drawn to the cases of D. PP vs Ng'andu and Others8, DPP vs Chibwe9 and James Matale vs Zambia Consolidated Copper Mines2. As regards grounds 3 and 4, counsel clarified that the conte::1tion by the Complainant is that there was no consideration of the evidence and consequently nc findings of fact were made as regards the effect of the transfer on the Complainant's position. Cnder ground 5, counsel clarified that the Complainant's contention is that the court below ignored the e'vidence before it as regards the reasons for the termination of the contract and based its conclusion on factors other than the evidence adduced before it. As such, it was argued that the court below cannot be said to have made a finding of fact. Counsel argued that in view of the letter :0 the Minister, there was an obligation by the court below to look behind the real reason for the termination of the Complainant's employment in accordance with the case of James lI1'atale vs Zambia Consolidated Copper Mines Plc2• J18 As regards ground 8, counsel clarified that the Complainant's contention is that the court below did not state the context in which the evidence adduced on discri:nination was insufficient. It was further argued that the section 94 of the Industrial and Labour Relations Act relied upon by the Respondents' does not relate to appeals not being allowed on findings of fact but rather, the deadline set for delivery of judgments by the court below. We have considered the arguments by counsel for the parties, the judgment of the court below and the record of appea_. Before we consider the grounds .of appeal advanced, :.t is important that we make a determination on the 0bject:.on raised by counsel for Respondent. The objection was that the appeal is incompetent because it questions the findings of fact by the court below. It was counsel's c..rgument that in accordance with section 94 (which we c..ssumed to be section 97) of the Industrial and Labour Re lations Act a party cannot appeal to this court against the decision of the court below based on. findings of fact. We were, in this regard, referred to our decision in the case of Konkola Copper Mines vs Kakenenwa J19 MuyangwaS and Konkola Copper Mines Plc vs Mainda Mwiinga Nchimunya6. The COIT_plainant's response was that the appeal does not seek to question findings of fact but the fact that; there were no such findings of facts; no proper analysis of the facts; and no consideration of the evidence by the court below. Section 97 of the Industrial and Labour Relations Act states as follows: "Any person aggrieved by any award, declaration, decision or judgment of the court may appeal to the Supreme Court on any point of law or any point of mixed law and fact". The sa.id section therefore, makes prOVISIOnfor an appeal to tbs court from a decision of the court below only on issues on a point of law or of mixed law and fact. By implication, no appeal can lie to this court from a decision of the court below based on findings of fact. We made this clear in tr_e case referred to us by counsel for the Respondent or Konkola Copper Mines vs Kakenenwa J20 MuyangwaS where Chibesakunda JS had the following to say at pages Jll and J12: "TAlehold that the appeal before this court is against the fi!1ding of fact by the lower court. Section (97) of the Ir.dustrial Relations Act proscribes against Appeals lying to this court on findings of fact by the Industrial Relations Court. Therefore the appeal in this court is incompetent" . We have considered the objection in the light of the provisions of section 97 and the case referred to us. We have also considered the questions that this appeal pose, being: whether the court below made any findings of fact; whether the court below analysed the facts put before it; whether the court below considered the evidence adduced before it; and whether or not the court below adjudicated on all the matters put before it. This can be discerned from the manner in which the grounds of appeal were couched and the direction some of the arguments took. The "viewwe take is that these questions or issues raise points of law because there is an obligation placed upon the trial court to: make findi::1gs of fact; analyze the facts; and c::msider the evidence adduced before it. Infact, these are tenets of J21 good judgment writing. The appeal does not seek to address the issue of whether or not the court below erred in fact by making certain findings of fact. The line between such a ques::ion and the other four questions we have posed is blurred in this appeal on account of the manner in which counsel for the Complainant has argued some of the grounds, which suggests that it is findings of fact that are being questioned. We can therefore, understand the basis of the objection raised by counsel for the Respondent. Be that as it may, on the whole, the grounds of appeal are crafted in such a way that they raise questions on points of law. We tl'_er::fore find no merit in the objection and accordingly dismiss it. We nov! turn to consider the grounds of appeal. In doing so, we r_ote that the Complainant's counsel did not argue ground 7. As such we take it that it has been abando::led. We have also noted that this appeal t~rns on the four issues we have identified. As such we shall not conside:: the nine grounds as they have been advanced but rather the four issues that we have formulated in the earlier part of this judgment. For the avoidance of doubt, the four issues for consideration are as follows: • J22 1) whether or not the court below made any findings of fact; 2) Whether the court below analysed the facts put before it; 3) Whether the court below considered the evidence adduced before it; 4) whether or not the court below adjudicated upon all the matters put before it As regards the issues 1, 2 and 3, the Complainant has contended as follows: that the court below did not consider the evidence led before it and only considered the submissions by the Respondent's counsel in arriving at its decision; that the true reason for the Complainant's dismissal was never analysed; and that there was no consideration of the fact that the Complainant's transfer would result in a demotion to her; As regards the first contention, we do not accept the allegation that the judgment of the court below :.s based only on the submissions by the Respondent's counsel and does not consider the evidence. The view we take is that the court below in arriving at its decision did take in consideration the evidence in relation to the two issues that J23 were at the heart of the dispute. This can be discerned from the finding of the court below at pages J8 to J9 as follows: "Quite ciearly the Complainant had taken the stance that the Respondent had changed the terms of her employment and, therefore, considered the particular c-:mtra-::t!o be at an end so that her transfer to Solwezi was a new appointment with new terms and conditions of service. But was this really the case? In resolving the matter we notice from the letter of appointme'1t dated 11th Apri~ 2006, that under item 16(ii) of the Terms and Condif..ons of Employment, the Complainc..nt had "c.greed t'J be flexible with regards to transfers to other operations orfunctions for operational requirements. We notice also that according to the same letter of appointment she was employed as Administrative M..:mager;~eportingdirectly to the team leader within her assigned work area. Granted that the Complainant was in the course of her employment and over the years referred to as Finance and Administrative Manager and that she handled accounting duties, her substantive appointment still remained that of Administrative • J24 Manager and in terms of item 1 of the Terms and C:mditions of Service referred to above it would seem that her substantive position remained that of Administrative Manager. There was no other appointment put in evidence to show that she had assumed the position of Finance and Administration M::mager).'. The Complainants dispute with the Respondent stems from the fact that she entertained a belief that she was the Finance and Administration Manager. As such her transfer to Solwezi in the position of Administrative Manager amounted to a demotion especially that she would have to report to the Finance and Administrative Manager. The view we take is that the court below, in making the findings it made tha: we have referred to, adequately dealt with the dispute before it having regard to the evidence presented before it. As counsel for the Respondent argued and indeed the court below found, the relationship between the Complainant and Respondent was governed by the conditions cf service at pages 31 to 35 which are in the form of a letter of employment. By clause 1 of the said letter the Complainant's substantive position is des~gnated • J25 as Administrative Manager. The finding of the court below was therefore in line with the evidence tendered. The evider-ce by the Complainant to the contrary is not acceptable in the light of the High Court decision in the case of Sam Amos Mumba vs Zambia Fisheries and Fish Marketing Corporation Limited7 in which it was held as follows at page 136: "IVhere the parties have embodied the terms of contract into a written document extrinsic evidence is not admissible to add to, vary, subtract from or contradict the terms of the written document except on certain exemptions". We applied this principle in the case of Kalusha Bwalya vs Chadore Properties and Ian Chamunora Nyalugwe HaluperilO quoting from the case of Holmes Limited vs Buildwell Construction Company Limited11, Further, we are of the firm view that the second contention does not also have merits. The Complainant has argued that her termination was not as a consequence of her refusal to be transferred but rather the reasons given to the Minister in the letter dated 13th March, 2012. It was therefore argued that the court below was obliged, as it is • J26 empc.wered, in accordance with the James Matale2 case, to look into the real reasons of the dismissal. The court's finding on the termination of the Complainant's employment is at pages 15 and 16 of the record of c.ppeal. At page 15 it is as follows: "It is, therefore, our view that her insistence on being paid her service benefits amounted to a repudiation of the centract on her part. Fortunately for her, however, tne Respondent decided to terminate the contract by way of payment in lieu of notice". And at page 16 as follows: "The Respondent was in the case at hand moved by the Compbinant to bring to an end the employment relationship between them. They opted to terrr.inate by payment in lieu of notice. In line with authorities above, the Co:nplainant's employment was lawfully terminated " Clearly, the foregoing findings do not make reference to the letter to the Minister of 13th March, 2012. ?urther, the court telow did not, as counsel for the Complainant argued, link the termination of the Complainant's • J27 employment to the said letter. The view we take is that the court below cannot be faulted for not linking the termination to the said letter because, in any event, the Complainant herself did not see such link and did not request the court below to link the letter to the termination. We are of th:s view because the evidence in the a::Iidavit in support of the notice of Complainant, which is at pages 21 to 58 of the record of appeal, makes no such cO::1nection. Further, the first time that the letter is introduced and mentioned in evidence is by way of the Complainant's affida'lit in reply to the Respondent's answer at page 64 in the record of appeal. The purpose for which the letter is referred to III the said affidavit IS to pr.:we the Complaina::1t's contention that she was the Finance and Administration Manager. This can be discerned from paragraph 5 of the affidavit at page 65 of the record of appeal which states in part as follows: "... the fact that I had been employed as Finance and Administration Manager and occupied that position up to 2nd March 2012 is attested to by Bruce Paterson himself in a letter dated 13th March 2012 ... )} • • J28 The letter was again referred to by the Comp~ainant in her evidence in chief as is evident from the notes of the proceedings at the trial at page 190 of the record of appeal. The purpose for referring to the letter was to confirm that the department of Finance and Administration existed. The notes, in this regard, read in part as follows at page 190 of the record of appeal: "It is confirmed that a department called Finance and Administration exists at Bell Zambia in Kalulushi .... I was performing the job of Finance and Administration IV:anaoer". ~ These portions of the evidence clearly show that the Complainant's sole purpose of using the letter of 13th March, 2012 was to prove the contention as regards the position she thought she held. The letter was not intended for the cou::t below to look behind the real reason for the termination. We have arrived at the foregoing finding, notwitr_standing the evidence that the letter alleged incomr:oetence on the part of the Complainant. T~1.esaid evidence is at page 190 of the record of appeal 3.nd its states as follows: • J29 "These concerns by management were not brought to ;ny attention. The sentence amounts to alle9ing that I was incompetent. This would call for a disciplinary charge. I was not charged ... " ':'he allegations of incompetence are commg after the termination". The view we take of the foregoing evidence is that it was not intended to be used as a ground for the termination and sway the court below accordingly. It was merel? intended to make known what the Complainant felt about the particular portion of the letter. This is the view we take because there is nothing to the contrary or contended in the notice of complaint or indeed the affidavit evidence. Further, even assuming our finding was to the contrary, the view we take is that the court below was not obliged to look behind the termination to see if it was actuated by the allegations of incompetence. We take this view because, the authorities on the issue show that the court below can only exercise such power where it is the employer and not employee who initiates the termination. In this case, the finding of the court below, which we BO cannot fault, was that it was the Complainant who initiated the termination. As rega::-ds the third contention on the effect of the transfer, the view we take is that the finding of the court below that the Complainant was Administrative Manager and not Finance and Administration Manager addresses the lssue. We say this because, and as we have demonstrated in the earlier part of this judgment, the Complainant resisted the transfer on the basis that she was being transferred in a lower capacity than she held. The court below held that this was not so because she was at tr-_e Daterial time Administrative Manager and transferred as such. The court below, therefore did consider tt.is aspect of demotion and found it untenable. The court below went further at page 15 of the record of appeal to state why the Complainant may have felt like she was being demoted in the following words: "Obviously because of having worked for a leng time and probably having acquired standing as a head office per-sonnel her sensibilities were injured on the basis that her status was reduced. Contractually, however, it , J31 is quite clear that the Respondent was entitled to effect the transfer". By the foregoing words, it is clear that the court below foun::i that the Complainant's reaction to the whole episode of her transfer was as a result of a dented ego. We quite agree with this finding. In view of the findings we have made in the preceding paragraphs, the answer to issues 1, 2 and 3 is in the affirmative. We therefore find that the court made findings of fact, properly analysed the facts, and considered all the evidence bef.::>reit. We now turn to consider the fourth issue. We have partially considered this issue when considering the other three Issues. The only aspect that remams to be determined is the allegation that the termination was based on discrimination. The view we take is that the court below adequately addressed this issue. This is evident from its finding at page 16 of the record of appeal as follows: "In view of the decision that we have taken we do not see how the issue of discrimination is relevant. Even if it were, however, we do not think that the Complainant • • had availed sufficient material on which to find discr.mination in the refusal by one employee to ;ransfer to Solwezi or that Mr. Broomer was treated differently on account of being white or male". The effect of the said finding is that the court having found thE..t the Complainant prompted the termination of employment by asking for it, it did not see how the termination could be linked to discrimination. Further, it found that there was insufficient evidence for it tc find that there was discrimination. '='he Complainant's evidence with respect to the alleged discrimination is in the affidavit in support and the viva voce evidence of the Complainant. It suggests Llat when Share Broomer, a white male employee, was transferred to Solwezi he was allowed to go to Solwezi and have a feel of the p:ace for a week. That upon his return, he refused to be transferred and that despite this he was promoted. It was contended further that his transfer was discussed m a management meeting. Under cross examination at page 197 d the record of appeal the Complainant testified that: "there are no minutes to show the fact of Share's transfer". By this statement we understand the Complainant to be • saymg that the minutes of the meeting where Share Broomer's transfer was discussed were not bef::>recourt. The allegations therefore could not be proved. This being the case, we cannot fault the court in any way by holding that there was insufficient evidence before it on Share Broomer's transfer. The answer therefore, to the issue 4 is also ~n the affirmative. The court below did adjudicate upon all the matters presented before it. We therefore find no merit III the appeal and accordingly dismiss it with costs, both in this court and the court below. The same are to be taxed in default of agreement. \ - ~ ;;;-.- -c-:----, •••••••••••••••••••••••••• 0 •••••••••• I. C. MAMBILIMA CHIEF JUSTICE . - ) J34 ===-; ~~- ......••..-._._ ~: R. M. C. KAOMA SUPREME COURT JUDGE . N. R. UTUNA SUP EME COURT JUDGE