Weir Minerals Central Africa Limited v Patrick Chisanga (Appeal No. 114/2022) [2023] ZMCA 345 (23 November 2023)

BETWEEN: AND PATRICK CHISANGA APPELLANT RESPONDENT Coram: Kondolo, Majula & Chem.be, JJA On 16th November, 2023 and 23rd November, 2023 For the Appellant Mr. C. J. Mumba Messrs Chibesakunda & Co For the Respondent No Appearance JUDGMENT MAJULA JA, delivered the Judgment of the Court. Cases referred to: 1. Guardall Security Group Limited vs Reinford Kabwe - CAZ Appeal No. 44 of2019 2. Hu He Rong vs Charity Oparaocha - SCZ Appeal 111/ 2000 3 . Sam Amos Mumba and Another vs Commerce Zambia Limited - SCZ No. 88 of 1996 4. The Attorney-General vs Marcus A chiume (1983) ZR 1 .. - J2 5. Wilfred Weluzani Banda vs Medical Association of Zambia and The Attomey-General - SCZ Appeal 116/ 2012 6. Printing and Numerical Registering Co. vs Simpson ( 18 7 5) 1 9 Ex. 4 62 7. Citibank Zambia Limited vs Suhayl Dudhia - SCZ Appeal No. 6 of 2022 8. Zambia National Provident Fund vs Chinua - SCZ Judgment No. 18/ 1986 9. Eston Banda and Another vs Attomey General- SCZ Appeal No. 42/2016 10. Tebuho Yeta vs African Banking Corporation (Zambia) Limited - SCZ AppealNo. 117/ 2013 11. WWF Zambia vs Brenda Ngosa Mukalula Tembo - CAZ Appeal 215/ 2021 12. Masauso Zulu vs Avondale Housing Project Limited (1982) Z. R. 172 1. 0 Introduction 1. 1 This appeal originates from a decision of Honourable Mr. Justice Davies C. Mumba dated 23rd February 2022 which was in favour of the respondent for wrongful and unfair termination of employment. 1. 2 We are being called upon to interrogate the basis of the decision which according to the appellant was flawed in that there was uncontroverted evidence on record of the misconduct and/ or breach by the respondent of his contract of employment. 2.0 Background 2.1 The appellant and respondent were 1n an employment relationship wherein the latter had been employed as a Process Engineer from 1st December 2019 up until the 28 th February 2020 when the appellant terminated the latter's employment. J3 During this period of time, the respondent was on probation and the reason advanced for the termination was unsatisfactory probationary period after having conducted an appraisal and assessment. 2.2 The respondent was paid his dues up to the date of termination. This turn of events greatly displeased the respondent who proceeded to file a notice of complaint before the Industrial and Labour Division of the High Court on 17th June, 2020. He sought a multitude of reliefs inter alia a declaration that the termination of his employment was unlawful, wrongful and unfair, damages for unlawful, wrongful and unfair termination of employment, and damages for breach of contract. He also sought damages for loss of employment, pain and suffering, reinstatement, repatriation and travelling expenses. 3.0 Decision of the court below 3.1 After scrutinizing the evidence adduced as well as the submissions by the respective parties, Honorable Justice Mumba found that the respondent had been wrongfully and unfairly terminated. As a consequence, the respondent was awarded damages equivalent to 9 months of his basic salary plus allowances with interest. J4 3. 2 Secondly, that the respondent should repay the sum of K34 ,375.00 to the appellant which amount was wrongly made in pursuit of a proposed settlement agreement. 3.3 Thirdly, that the respondent should pay the sum equivalent to the value of the iPhone which was the property of the appellant and had been taken by the respondent. 3 .4 The other claims for refund of travel expenses and repatriation were dismissed. 4.0 Grounds of appeal 4 . 1 It is these findings that have triggered the appeal before our Court as the appellant has expressed great dissatisfaction over the same. In this regard, six (6) grounds of appeal have been advanced framed as follows: 1. The court below erred in law and in fact when it delivered judgment after the lapse of more than one year from the date on which the complaint was filed and the said judgment is null and void for want of jurisdiction. 2. Further and/ or in the alternative, the court below erred in law and fact when it omitted to hear viva voce evidence in this matter being contentious and contained contradictory affidavit evidence, - . J5 and further proceeding to rely on the evidence of the respondent on points in contention. 3. Further and/ or in the alternative the court below erred in law and in fact when it found that the respondents' termination of employment was wrongful and unfair for having been done in breach of section 27(2) and 52( 1) of the Employment Code Act (No.3 of 2019) and the court particularly erred in finding among others that: a. The results of the assessment were not communicated by the appellant to the respondent prior to terminating his employment with it; and b. The respondent was not given an opportunity to be heard by the appellant prior to termination of his employment with it. c. Further and or in the alternative, the court below erred in law and in fact by awarding the respondent damages for wrongful and or unfair termination inspite of the uncontroverted evidence on record of the misconduct and or breach by the respondent of his contract of employment. d. Further and or in the alternative, the court below erred in fact when it failed to recognize that the - . J6 dispute between the parties had been settled by way of a settlement agreement. 5 .0 Appellant's arguments 5.1 The submissions pertaining to ground one were anchored on the case of Guardall Security Group Limited vs Reinford Kabwe 1 which has since been overturned by the Supreme Court. We shall therefore not reproduce the submissions pertaining to this ground for reasons that shall become apparent in the latter part of this judgment. 5.2 In relation to ground two, the appellant's Counsel submitted that the lower court erred when it omitted to hear viva voce evidence in this matter when it was contentious and contained contradictory affidavit evidence. As authority for this proposition, we were referred to Hu He Rong vs Charity Oparaocha2 and the case of Sam Amos Mumba and Another vs Commerce Zambia Limited. 3 5.3 We were accordingly called upon to interfere with the findings of the lower court on the authority of the case of The Attorney General vs Marcus Achiume4 where it was held th at an unbalanced evaluation of evidence where only the flaws of one side but not th e other are considered is a misdirection which no trial court should reasonably make, and entitle the Appeal Court to interfere. J7 5.4 Ground four was argued in two parts. Firstly, learned Counsel pointed out that attempts were made to communicate the results of the assessment to the respondent in line with section 27 (2) of the Employment Code Act, despite his unruly behavior. 5.5 The other aspect to the appellant's argument was that the respondent was given the opportunity to be heard prior to his termination. That this was done by the Country Manager on 25th February, 2020 and on another occasion by management on 6 th May, 2020. 5.6 That after due consideration, the appellant decided to terminate the respondent's employment for gross misconduct relating to dishonesty, abuse of company resources and use of abusive language against the Country Manager. 5 .7 It was thus contended that the respondent in this case was not wrongfully and unfairly terminated to entitle him to an award of damages. 5 .8 In the fifth ground of appeal, the appellant contended that the lower court erred when it awarded the respondent damages in excess of the normal measure when the evidence did not support it. Counsel observed that the respondent's employment was terminated during his probationary period which is three months. J8 5. 9 The case of Wilfred Weluzani Banda vs Medical Association of Zambia and The Attorney-General5 was called in aid which gives guidance on when a court can depart from the normal measure of damages. In the cited case it was held that the same should be departed from when the termination is inflicted in a traumatic fashion which causes undue distress or mental suffering resulting in a loss of employment opportunities. It was forcefully argued that in this case there is nothing extraordinary surrounding the dismissal that would merit the order for damages that was awarded. 5.10 In wrapping up , the appellant submitted that the court below misdirected itself when it failed to recognize that the dispute between the parties had been settled by way of a settlement agreement. Counsel noted that from the evidence on record, the terms were discussed prior to the drafting of the settlement agreement. Relying on the case of Printing and Numerical Registered Co. vs Simpson6 Counsel urged us to enforce the terms of the settlement agreement. 5 . 11 Based on the foregoing, Mr. Mumba implored us to allow the appeal and set aside the decision of the lower court. 6.0 Respondent's arguments J9 6.1 We have duly noted the respondent's submissions and we wish to state from the onset that they were couched in a manner that suggests giving evidence from the bar which is unacceptable. 6 .2 In summary the contention by the respondent was that the appellant had no valid reasons to terminate his contract of employment. He further alleged that he was not given his performance assessment. He asserted that he was not charged with any misconduct and there was no disciplinary tribunal which convicted him of the same. 6.3 All in all, he urged us to dismiss the appeal with costs. 7.0 Hearing of the appeal 7 .1 At the hearing of the appeal, the respondent was not in attendance. On behalf of the appellant, learned Counsel Mr. Mumba wholly relied on the appellant's heads of argument that he had filed in support of the appeal. 7 .2 He further indicated that the respondent's heads of argument amounted to giving evidence from the bar and he urged us to the ref ore disregard them. JlO 8 .0 Decision of this court 8.1 We have reflected on the appeal before us and taken into consideration the arguments that have been advanced by the parties in arriving at our decision. Ground 1. Jurisdiction of the Court 8.2 In the first ground of appeal, the appellant has argued that the court had lost jurisdiction on the matter as it had failed to render a decision within the one-year period of th e complaint having been lodged. They have placed reliance on the provisions of section 19(3)(b)(i)(ii) of the Industrial and Labour Relations Act. In this regard, they have called in aid our case of Gu.ardall Security Group Limited vs Reinford Kabwe 1 where we had held that failure to render a judgment within one year as prescribed in the Act implied a termination of jurisdiction on the part of the court to do anything in the matter. 8.3 We quickly wish to state that the Gu.ardall Security1 case has been overtaken by the case of Citibank Zambia Limited vs Suhayl Dudhia7 where the apex Court held that: "We accordingly hold that the case of Gu.ardall Securities Group Limited vs Reinford Kabwe 1 is bad law and is hereby reversed. This, by necessary implication, means Jl 1 that all other decisions based on or ansing from the Guardall case can suffer no better fate." 8. 4 On account of the fore going, this ground is doomed to fail. Ground 2 - Failure to hear viva voce evidence 8.5 In the second ground of appeal, the appellant is irked by the court having proceeded to determine the matter based on affidavit evidence. The contention is that the matter having been a contentious one which contained contradictory affidavit evidence, the court erred by not proceeding to hear viva voce evidence. This would have enabled the court to test the strength and accuracy of the evidence put forth by the parties. 8.6 To cement their position, we have been referred to the cases of Hu He Rong vs Charity Oparaocha2 and Sam Amos Mumba, Progressive Business Services Limited vs Bank of Credit and Commerce Zambia Limited3 which enunciate the principle that where there is contradictory affidavit evidence, the court should proceed to hear the evidence viva voce. The appellant has asserted that on account of the fact that the learned Judge proceeded to decide in this case in favour of the evidence tendered by the respondent, he made an unbalanced evaluation of the evidence. On the strength of the case of Attorney General vs Marcus Achiume4 we have been called upon to quash the finding. J1 2 8 .7 It is apparent that the rationale in the Hu He Rong vs Charity Oparaocha2 has been misapprehended by the appellant: This is what the court said; "We have looked at the evidence and arguments before us. It is quite clear to us that the evidence before the learned trial Judge from the respondent herself and her daughter was contradictory and as such the learned trial Judge misdirected himself in relying on such evidence to reach the conclusion} which he did. As we said in the case of Sam Amos Mumba} Progressive Business Service Limited and Bank of Credit Services and Commerce Zambia Limited} S. C. Z. Appeal No. 88/ 96:- 8.8 In the cited case the contradictory affidavit evidence was that of a mother and her daughter who were on the same side. The issue is that the same party gave conflicting evidence. In casu, as is generally the case in any litigation the opposing sides will always submit conflicting evidence whether viva voce or by affidavit. the position of the law on affidavit evidence is as stated in the case of Sam Amos Mumba (supra) cited by the appellant where the Supreme Court guided as follows; 'It is quite clear from these rules that as a matter of practice an originating summons is heard and disposed of on affidavits in Chambers and that where the issues _raised cannot be disposed of on affidavit then the court on it own Jl3 motion or application by parties or either of them adjourn the matter into open court for summary hearing, which may take the form of cross examination deponents on their affidavits. For this reason, we feel that the matter should take its normal course. Moreover, from the evidence available on record so far we do not conceive that the def end ants indebtedness could be properly ascertained on affidavits alone. We would therefore, order that the matter goes back to High Court to take its normal course.' In this case the proper course for the learned trial Judge to have taken would have been to have the matter adjourned into open court and to proceed to hear the evidence viva voce for him to decide on the veracity or otherwise of the evidence." 8. 9 Further on the question of the trial Judge considering the evidence before him in an unbalanced manner, we note that the learned trial Judge did not comment on important evidence contained in the appellant's affidavit but concentrated on the respondent's evidence that the appellant did not communicate the results of the assessment to the respondent in order to avail him an opportunity to respond to any adverse comments made by the appellant. The trial Judge then arrived at the conclusion that the appellant had thus contravened the mandatory provisions section 27(2) of the Act which was therefore fatal to its case. J14 8.10 In our view the Judge failed to consider the evidence on record where the appellant deposed that they held meetings on the 25th and 28 th February 2020 to discuss the assessment of the respondent's performance. Further that when they attempted to give the respondent the documents on assessment of his performance he had become aggressive and refused to receive the said documents. In addition, he issued threats (see page 99 of the ROA, paragraphs 55 - 57 of the affidavit in support of answer sworn by Khaled Al Zaylaa). 8.11 We hold the view that had the trial Judge considered this evidence he would have arrived at a different conclusion. 8.12 What emerges from the foregoing is that the trial Judge had an unbalanced evaluation of the evidence and in line with the case of Attorney General vs Marcus Achiume4 we are compelled to interfere with the finding as the trial court misdirected itself. We find merit in the second ground of appeal. Ground 3 - Wrongful and u.nfair termination 8.13 The aggravation in this ground is the finding by the trial Court that the termination was wrongful and unfair for having been done in breach of sections 27(2) and 52(1) of the Employment Code Act 1 • It has been strenuously argued that the lower court's finding flies in the teeth of the evidence in that the respondent who was on probation was communicated to prior to his employment being terminated, and was given an - .. J15 opportunity to be heard. That the results of the assessment were not conveyed to him by way of documentation as the respondent declined to receive the same and exhibited aggression. 8.14 On 28th February, 2020, the Country Manager did verbally communicate to the respondent the results of the assessment and therefore the appellant had acted within the confines of section 27(2) of the Employment Code Act. That this evidence is on record. Regarding the hearing, the respondent was given two opportunities by the Country Manager on or about 25th February, 2020 and also by management in South Africa on 6 th May, 2020. 8 . 15 Following these deliberations, the respondent was found wanting and his employment was terminated for the offence of gross misconduct, dishonesty, abuse of company resources and use of abusive language against the Country Manager. 8 . 16 It has been argued that after having reviewed the conduct of the respondent it was within the discretion of the appellant whether or not to terminate the respondent's employment since his actions amounted to a dismissible offence. For this averment reliance has been placed on the Zambia National Provident Fund vs Chirwa8 case. In a nutshell, the appellants have strongly contended that they did not violate sections 27(2) and 52(1) of the Employment Code Act1 . . . Jl6 8.17 Regarding the definitions of the terms of wrongful and unfair dismissal, they have drawn our attention to the case of Eston Banda and Another vs Attorney General9 • 8.18 We have microscopically examined the rival arguments and the evidence on record. The hotly contested question is whether or not the respondent was wrongfully and unfairly terminated. We are compelled therefore to examine what wrongful and unfair termination entails. Before we delve into that distinction we note that the appellant has in their submissions referred to wrongful and unfair dismissal. They have contended that the respondent could not have been wrongfully and unfairly dismissed. We wish to quickly clarify that there is a distinction between wrongful, unfair and unlawful dismissal as opposed to termination and the two should not be used interchangeably. The case of Redrilza Limited vs Abuid Nkaza & Others clearly stated that: "There is a difference between 'dismissal' and 'termination' and quite obviously the considerations required to be taken. Simply put dismissal arises involving loss of employment arising from disciplinary action, while 'termination' allows the employer to terminate the contract without involving a disciplinary action." 8.19 In the case of Eston Banda and Edward Daliso Zulu vs The Attorney General9 called in aid by the appellant it was stated that: • I ... J17 "We note that the terms 'wrongful', 'unlawful' and 'unfair' termination of employment have, persistently been used interchangeably in arguments and submissions. Needless to state that these two terms do not ref er to one and same thing." 8.20 We are therefore at pains to note that after citing the above case, the appellant's counsel proceeded to argue using the terms interchangeably which has left us bewildered as the guidance given is that the terms should not be used interchangeably as they do not ref er to one and the same thing. That being said we will proceed to consider the distinction between wrongful and unlawful termination as it has been clearly indicated that the respondent was terminated and not dismissed. The Judge was very categorical in his finding when he stated at page J36 of the judgment or page 51 ROA as follows: "In summary, I am satisfied that the respondent breached both the provision of section 27(2) and 52(1) and (2) of the the Employment Code Act, termination wrongful and unfair. " thereby rendering 8 .21 It is plain from the foregoing that the mode of exit was by way of termination. Wrongful termination generally refers to the termination of an employee's contract in violation of employment laws, employment contract and public policy. Unfair termination is a broader term and can include situations where the termination seems unjust or unreasonable. In a nutshell, when a termination is wrongful, it implies that there . ; J18 has been a breach in the terms of the employment contract. However, a termination is deemed to be unfair where there h as been a breach of statutory provisions. 8.22 Arising from the above it now beh oves u s to look at the p rovisions of section 27(2) of th e Employment Code Act which enacts that: "An assessment of an employee shall be taken by the employer during the probationary period and the result of the assessment shall be communicated to the employee before the end of the probationary period. " 8.23 The gist of this provision is that an employer must assess an employee's su itability for the position during probation and the result must be communicated to the employee before the end of the probationary period. The essence of a probationary period was explained in the case of Tebuho Yeta vs African Banking Corporation (Zambia) Limited10 by the Supreme Court where they held that: " ... The Appellant was on probation at the time of termination of employment. We agree with the lower court and with Mr. Pindani that a probation is a work test period for the benefit of both parties: the employer to assess whether the employee is suitable for the position and the employee has the job opportunity permanently ... it is trite that parties are bound by the terms of the contract. '' to decide whether take up the to J19 8.24 We had occasion to deal with a probation clause in the case of WWF Zambia vs Brenda Ngosa Muka,lula Tembo11 where after having referred to the aforecited case, we stated that: «The import of the authority is that a probation clause allowed for the employer to terminate the respondent's employment during the probationary period as per section 27(6) of the Employment Code Act. In the instant case, the respondent had been working for five days and therefore the employer was at liberty to assess whether the employee was suitable for the position." 8.25 We went further and held that: «we agree with the appellant that it was not mandated under section 27 of the Employment Code Act to notify the respondent that an assessment was being carried out. The mere fact that she was on probation was enough to put the respondent on notice that she will be assessed by the employer on whether she was suitable for the job during that period." 8.26 We will not prevaricate from our reasoning in the aforecited case of WWF Zambia vs Brenda Tembo12• It applies with equal force to the case at hand. The facts of the case reveal that the respondent was on probation and therefore he was on notice that he will be assessed as to his suitability. The obligation on J20 the part of the appellant was simply that the results of the assessment be given to him which was done on 28th February 2020 by the Country Manager. 8.27 We are thus satisfied that the provisions of section 27 of the Employment Code Act were complied with and the learned Judge fell into grave error when he found otherwise. 8.28 We now turn to consider whether the provisions of section 52(1) & (2) of the Employment Code Act which provides that where the employer terminates the contract they shall give a reason and the only valid and recognised reasons are those connected with the capacity and conduct of the employee or based on the operational requirements of the undertaking. 8.29 In casu, the evidence on record is that the appellant being displeased with the conduct of the respondent did summon him on the 25th and 28th of February (page 16 of ROA). Further on 6 th May 2020, he was also heard by management 1n South Africa. This is not in dispute. The argument that the results of the assessment were not communicated to him, in our view, is misconceived. The respondent did not deny having the meetings with the respective managers from the appellant. The only issue is that he did not receive a copy of the assessment which was conducted. J21 8.30 The appellants have indicated the reasons why they were unable to give a physical copy. This was on account of the cantankerous behavior of the respondent. He was said to be abusive and aggressive towards the purveyors of the assessment results. The appellants were subsequently compelled to hand him a termination letter after efforts to give him the assessment results proved futile. 8. 31 The next question that falls for determination is whether the reasons advanced for termination were valid. The contention is that the respondent was dishonest about the meetings, work and/ or time spent at the sites of various clients or potential clients, that he was reported to have visited on specific dates. 8.32 The appellants have submitted an avalanche of evidence which led them to the irresistible conclusion that the respondent had been dishonest in his dealings. The respondent had been given a company car which had a tracking device installed. This was in order to monitor his movements. Upon comparing and contrasting the tracking reports from the device with the respondent's reports of his movements, it was quite apparent that the reports were at variance. 8.33 We have painstakingly scrutinized the respondent's reports on the various dates in exhibits KZ4, KZ6, KZ7, KZ8 and KZ9 and compared them with the appellant's tracking device reports exhibits KZ5 (see pages 115-134, 141 - 153 and 155 ROA). It is J22 abundantly clear when the respondent's reports are cross referenced with the appellant's reports, that there are maJor discrepancies. There is not an iota of doubt in our minds that the respondent did misuse and abuse company resources as evidenced by the tracking device reports of the appellants. In our view there was overwhelming evidence presented by the appellant in order for the trial court to determine that the allegations of dishonest conduct had been established. In this regard, the trial Judge made a perverse finding by holding that the respondent had been wrongfully and unfairly terminated in the face of overwhelming evidence to the contrary. 8.34 For the foregoing reasons, the decision of the lower court was erroneous and we are inclined to assail it in line with the case Masauso Zulu vs Avondale Housing Project Limited11 which guides on when we as an appellate court can overturn findings of fact. We are satisfied that the respondent was heard and the termination on the facts was justified. 8.35 Consequently, we find merit in this ground of appeal and uphold it. Grounds 4 & 5 - Award of damages and departure from normal measure 8.36 In the view that we have taken in ground three , that is, that the finding of wrongful and unfair termination having been set aside , the consideration of grounds four and five become an J23 academic exercise 1n futility. We say so because these were predicated on the finding by the court below that h e had been wrongfully and unfairly terminated. In other words, the relief that h e was awarded flowed from the finding by the trial Judge which we have reversed. 9. 0 Conclusion 9.1 In sum, the appeal substantially succeeds on account of the success of grounds two and three. Ground one was found to be unmeritorious and dismissed accordingly. Grounds four and five consequently fall away on account of the position we have taken in ground three. 9.2 This matter having emanated from the Industrial Relations Division of the High Court, we order that each party shall bear their own costs. ::::----,.. c::: ............ --:-: ..... c .................... . M. M. Kondolo, SC COURT OF APPEAL JUDGE r. · · · · · · · ·~···· ........ . B. M. Majula COURT OF APPEAL JUDGE . ............ ~m.~ .............. . Y. Chembe COURT OF APPEAL JUDGE