BHM Enterprises Limited v Paul Chiwina (APPEAL NO. 58/2021) [2023] ZMCA 425 (21 February 2023)

IN THE COURT OF APPEAL OF ZAMBIA HOLDEN AT LUSAKA (Civil Jurisdiction} APPEAL NO. 58/2021 APPELLANT PAUL· CHIWINA RESPONDENT CORAM: CHAS. HI, SIAVWAPA AND BANDA-BOBO On 18th January and 21 st February, 2023 FOR THE APPELLANT: MR. I. K. MULENGA OF IVEN MULENGA AND CO. FOR THE RESPONDENT: IN PERSON JUDGMENT SIAVWAPA JA, delivered the Judgment of the Court Cases referred to 1. Zambia National Provident Fund v Yekweniya Mbiniwa Chinua, (1986) ZR, 70 National Breweries v Mwenya (2002) ZR, 118 Pamodzi Hotel v Godwin Mbewe (1987), ZR, 56 2. 3. 4. Murray and Roberts Construction Limited v Lusaka Premier Health 5. 6. Limited SCZ Appeal No. 141I 2016 Nebert Phiri COMP I IRCLK/ 4 78/ 2016 Swarp Spinning Mills Limited v Sebastian Chileshe and Others (2002) ZR23 Telecommunication v CEC Limited Liquid Legislation referred to The Industrial and Labour Relations Act, Chapter 269 of the Laws of Zambia 1.0 INTRODUCTION 1.1 This appeal is against the Judgment of the Hon. Mr. Justice D. C. Mumba of the Industrial Relations Division dated 12th November 2020. 1.2 The learned Judge upheld the Complaint by the herein Respondent for unlawful, wrongful and unfair dismissal. 2.0 BACKGROUND 2.1 The Respondent herein was employed as a bus inspector by the Appellant 1n 2007 until 2019 when the Appellant suspended/ dismissed him from employment. 2.2 The reason for the Respondent's suspension/dismissal was a report made to the Appellant's Director alleging that the Respondent got himself drunk whilst on duty in Nakonde thereby putting the lives of the passengers at risk. 2.3 Upon returning to the Appellant's office in Mufulira, the Appellant's Director verbally suspended/ dismissed the Respondent before later serving him with a formal letter of suspension dated 3 rd July 2019. J2 2.4 On 29th July 2019, the Respondent filed a Notice of Complaint accompanied by an affidavit in support claiming as follows; 1. Court order declaring the said dismissal as unfair, wrongful and unlawful. Damages for unfair, wrongful and unlawful dismissal Payment for overtime for 12 years Payment for leave days accrued Interest 11. 111. 1v. v. v1. Costs 3.0 EVIDENCE IN THE COURT BELOW 3. l The Respondent's main testimony was that the allegation that he was drunk on duty was unfounded and that the Appellant's Director dismissed him verbally on 3 rd July 2019 when he went to the Director's Office with his father at the instance of the Director. 3.2 He further denied being served with the letter of suspension exhibited at page 65 of the Record of Appeal on 3 rd July 2019. 3.3 The Respondent's sole witness, his father, mostly gave evidence irrelevant to the claims as he simply stated how he and his son were well received by the Director. He also testified of how the Director told him about the report that his son was drunk on duty in Nakonde. J3 3.4 On the other hand the Appellant's testimony, through its four witnesses, was that the Respondent was drunk whilst on duty in Nakonde. Further that the Respondent's father asked for forgiveness on behalf of the Respondent. 3.5 The Appellant's Director maintained that he suspended the Respondent before writing him to exculpate himself. That the Respondent however, sued the Appellant before exhausting administrative procedures. 3.6 The Appellant also admitted suspending the Respondent verbally before writing asking him to exculpate himself. 4.0 DECISION OF THE COURT BELOW 4.1 The learned Judge reviewed the cases Zambia National Provident Fund v Yekweniya Mbiniwa Chinua 1, National Breweries v Mwenya2 and Pamodzi Hotel v Godwin Mbewe3, all decisions of the Supreme to the effect that no injustice is occasioned to an employee dismissed without compliance with procedure where he is found guilty of an offence for which dismissal is the punishment or where the employee has admitted committing a dismissible offence. 4.2 The learned Judge found the cases distinguishable in that the Respondent herein was neither subjected to the disciplinary J4 process to establish his guilty nor did he admit committing the offence for which he was dismissed. 4.3 As regards the measure of damages, the learned Judge justified the awarding of damages beyond the common law measure equivalent to the notice period by his views that the dismissal was abrupt and traumatic. He further held that the Respondent suffered inconvenience and stress and that the Respondent had not found another job at the time of the hearing as proof that it was difficult to find a job in this country .. 4.4 The learned Judge accordingly awarded damages to the Respondent for unfair, wrongful and unlawful dismissal and awarded him thirty-six (36) months' salaries of his last salaries plus allowances with interest. 5.0. THE APPEAL 5.1 Dissatisfied with the decision of the High Court as set out in paragraph 4.4 above, the Appellant filed its Notice and Memorandu1n of Appeal on 9 th December, 2020 on the following grounds as set out in the Memorandum of Appeal; 1. The trial Judge erred in law and fact when he held that the non-exhaustion of the administrative channels by the complainant did not have any effect on the action. JS 2. The trial Judge erred in law and fact when he held that the Appellant did not afford the Respondent an opportunity to be heard. 3. The trial Judge erred in law and fact when he held that the Appellant's claim that the Respondent was drunk on duty was unsubstantiated. 4. The trial Judge erred in law and fact when he held that the appellant terminated ' the Respondent's contract of employment without any valid reason. 5 . The trial Judge erred in law and fact when he held that the Respondent's dismissal was unfair, wrongful and unlawful. 6. The trial Judge erred in law and fact when he held that the Respondent deserved a n award of damages more than the normal measure of common law damages. 6.0 ARGUMENTS IN SUPPORT 6.1 In arguing ground one, the Appellant has relied on Section 5 (4) of the Industrial and Labou r Relations Act, Ch apter 269 of the Laws of Zambia which provides as follows; "An employee who has reasonable cause to believe that the employees' services have been terminated or that the employee has suffered any other penalty or disadvantage for exercising an employee's rights as specified in this section may- ( a) within thirty days after exhausting administrative channels available to the employee in the employee's institution; or where administrative channels are not available, within thirty days of knowing that the employee's services have been so terminated or that the employee has been so disadvantaged or penalized; lay a complaint before the Court." (b) J6 6.2 In that regard, the Appellant has argued that the Court below fell into an error of law by holding that the non-exhaustion of the administrative channels was of no effect to the complaint in view of the above cited provision of the law. 6.3 With regard to ground two, the Appellant has argued that the Respondent was given an opportunity to be heard following the suspension letter which required him to respond to the allegations levelled against him. 6.4 The Appellant has also criticized the Judge on the allegation that the Judge did not give reasons for agreeing with the Respondent on the question whether or not the Respondent was given an opportunity to be h eard . 6.5 The above argument is based on the position taken by the Supreme Court of Zambia in the case of Murray and Roberts Construction Limited v Lusaka Premier Health Lim.ited4 when it stated as follows~ "Needless to underscore, a Judge should not leave the parties surmising as to how he/ she arrived at a particular decision. In other words, a Judge must not confine the reasons to himself/ herself; he/ she must make the reason known to the parties to enable them appreciate how a particular decision was arrived." 6.6 In arguing grounds three and four together, which speak to the finding that the a llegation of drunkenness was not substantiated and that the Respondent was terminated without J7 a valid reason, the Appellant repeated the reason advanced in ground two that the learned Judge did not give reasons for his decision. 6.7 In ground five, the Appellant has argued that the learned Judge did not give reasons for accepting the Respondent's evidence that he was dismissed and for rejecting its evidence that the Respondent was suspended. 6.8 The above notwithstanding, the Appellant has argued that the dismissal could not have been unfair, unlawful or wrongful because the Respondent did not prove breach of procedure in dismissing him as the rules of natural justice were followed. 6.9 We were, in that regard, referred to the case of Nebert Phiri v CEC Liquid Telecommunication Limited5, a decision of the High Court in which the scope of each of the three terms namely; wrongful dismissal, unlawful dismissal and unfair dismissal was defined. 6.10 The Appellant has further argued that even if it were the case that procedure was not adhered to, the dismissal should still stand because it was not in dispute that the Respondent had committed a dismissible offence. J8 6.11 The last ground relates to the measure of damages awarded by the learned trial Judge and the Appellant contends that there was no justification for the awarding of damages over and above the common law measure which is equivalent to the notice period. 7.0 ARGUMENTS IN OPPOSITION 7 .1 The respondent did not file heads of argument in opposition and when asked on the hearing date why, he said he simply said that he was served with the Record of Appeal and Heads of Argument the previous month. 8.0 ANALYSIS AND DECISION 8.1 Throughout the course of this case, the foremost argument is whether the Respondent was dismissed or merely suspended from work. 8.2 At page 65 of the Record is a letter of suspension dated 3 rd July 2019. The Appellant's evidence is however, in accord with that of the Respondent that on 3 rd July, 2019 when he appeared before the Appellant's Director, he was not served with the letter of suspension. 8.3 Other than the Respondent's viva-voce evidence that he was verbally dismissed, there is no documentary evidence of his dismissal on the Record. It is therefore, open to us to look to J9 anything from the conduct of the Appellant from which an inference can be drawn one way or the other. 8.4 From the evidence in the Court below, it is not in dispute that the Appellant stopped paying the Respondent his salaries, from which rent for his residential house was being deducted. As a result, the Respondent was forced out of the house. 8.5 In our view, if the intention was to suspend the Respondent from work pending disciplinary processes, no such drastic action would have lbeen taken such as the withdrawal of the salary and the consequential eviction from the house, which is the property of the AppeHant's Director. 8.6 The other indicator is the fact that even though the letter of suspension is dated 3 rd July 2019, the fact that it was only delivered much later gives credence to the Respondent's evidence that it was an afterthought. No reasonable excuse was given for the delay in the delivery of the letter if indeed it was written on 3 rd July 2019, the day the Respondent appeared before the Appellant's Director. 8.7 The third indicator is the delay in charging the Respondent. The letter charging the Respondent with the offence of Gross Misconduct and Theft is dated 20th January 2020, six months no after the date the Respondent was purportedly suspended from work ( see page 69 of the Record). 8.8 This inordinate delay is further evidence that the suspension letter was an afterthought as no reasonable justification was offered by the Appellant 8. 9 In the meantime, the Respondent had already filed the complaint on 29th July, 2019 by the time he was charged in January 2020 and invited for the disciplinary hearing on 4 th February 2020. 8.10 It is our considered view that the letter of suspension and the charge letter were a reaction to the Notice of Complaint which was served on the Appellant soon after filing on 29th July, 2019. Our view is based on the fact that the Appellant filed the Answer to the Notice of Complaint eleven days after the filing of the complaint, on 9 th August, 2019 as evidenced by the document at pages 59 and 60 of the Record. 8.11 It is for the above stated reasons that the Court process that was commenced before the disciplinary process was commenced cannot be declared null and void in the absence of a court order to stay proceedings pending the conclusion of the disciplinary process. Jll 8.12 This then brings us to the calling in aid of Section 5 (4) of the Industrial and Labour Relations Act Chapter 269 of the Laws of Zambia by the Appellant to declare the proceedings null and void. 8.13 For ease of reference, we reproduce the section hereunder; "An employee who has reasonable cause to believe that the employee's services have been terminated or that the employee has suffered any other penalty or disadvantage for exercising an employee's rights as specified in this section may- (a) (b) within thirty days after exhausting administrative channels available to the employee in the employee's institution; or where administrative channels are not available within thirty days of knowing that the employee's services have been so terminated or that the employee has been so disadvantaged or penalized; lay a complaint before the Court". 8.14 Our focus is on sub-paragraph (a) which the Appellant relied upon by arguing that the Respondent should have exhausted the available administrative channels. 8.15 The starting point is that the administrative channels referred to in section 5 are those available in the employee's institution. In this case it is the channels supposedly set out in the Appellant's Disciplinary and Grievance Procedure Code. 8.16 We have however, combed through the record and the evidence in the Court below and at no point is reference made to any document providing for or regulating the conduct of the Appellant's employees. J12 8.17 Further, to our dismay,. the formal charge letter at page 69 of the Record does not cite any provision under which the Respondent was charged and the penalty for the offence. 8.18 Based on the above facts, it is clear that the Appellant did not have any document regulating Conduct and Disciplinary Grievance Procedure Code for its employees. As a matter of fact, at the hearing, counsel for the Appellant admitted that the Appellant did not have any Disciplinary and Grievance Procedure Code. 8.19 We are therefore, inclined to accept the Respondent's testimony in the Court below that he was verbally employed and therefore, verbally dismissed as held by the learned Judge in the Court below. 8 .. 20 The effect of the above position is that in the absence of a Discip]inary and Grievance Code, the Respondent's only recourse was to the Courts of law and he did just that. 8.21 The other factor for consideration is that the Respondent was terminated by the Appellant''s Chief Executive Officer, essentially leaving him with no higher avenue to seek recourse to. It would have been different if the dismissal was handed J13 down by an officer ranking below the Director as he would have had the opportunity to seek redress from the Director. 8.22 Having determined that the Respondent was verbally dismissed and not suspended from employment, we now consider whether the dismissal was made in compliance with procedure and the law. 8.23 The Appellant has argued firstly that the Respondent was dismissed in full compliance with the law and the Rules of natural justice in that he was charged and invited for a disciplinary hearing but that he did not attend. 8 .24 In the alternative, seemingly, the Appellant argues that if there was breach of procedure in dismissing the Respondent, then the dismissal should still stand because it is not in dispute that he committed a dismissible offence. This argument is anchored on the Supreme Court of Zambia's decision in the case of Zambia National Provident Fund v Yekweniya Mbiniwa Chirwa. 8.25 Our view is that in as much as the Appellant did not have a Disciplinary and Grievance Procedure Code, which it could have breached, the dismissal was done in flagrant breach of the Rules of natural justice. Jl4 8.26 This is so because there is no evidence that the Respondent was given an opportunity to be heard on a clear formal charge before he was verbally dismissed. Further, the Record shows that the Director was the accuser and the Judge in the matter. 8.27 As regards the applicability of the principle in the Chinua case cited in paragraph 8.24 a bove, we state here that the principle applies where notwithstanding breach of procedure, the process has revealed a clear commission of the offence by the employee, which offence is dismissible as per the employer's Disciplinary Code. 8.28 However, where no disciplinary hearing is conducted, the employee must have unequivocally admitted committing the dismissible offence. 8.29 In this case, there is no evidence that the Respondent admitted committing the offence of being drunk on duty while in Nakonde. Further, in the absence of a Disciplinary Code of Conduct, we cannot surmise that drinking whilst on duty was a dismissible offence in the Appellant Company. We accordingly affirm the position which the learned Judge below took in that regard. 8.30 In the premise, we are unable to accept the Appellant's arguments in both the main and the alternative. JlS 8.31 The final issue relates to the order for damages over and above the normal measure at common law being that equivalent to the Notice period. 8.32 The Appellant argued on the basis of the Supreme Court of Zambia decision in the case of Swarp Spinning Mills Limited v Sebastian Chileshe and Others6, which it stated as follows; "The Court can only depart from the nonnal measure of damages where the circumstances and the Justice of the case so demand. The Court will usually consider situations where the tennination is inflicted in traumatic fashion which causes undue distress or mental suffering". 8 .33 On the above cited quotation, the Appellant has argued that the Respondent was not dismissed on conditions such as those set out by the Supreme Court and as such he ought not to have been awarded damages above the common law damages. 8.34 We start by stating that the learned Judge took the view that the abruptness of the dismissal induced shock, trauma, inconvenience and stress in the Respondent for which he deserved higher than normal damages to the extent of thirty-six (36) months salaries and allowances. 8.35 In our view, the award was exaggerated given that the Respondent's job was not one requiring special skill to make it difficult for him to find a similar job within the transport sector. J16 8.36 We also think that the fact that the Respondent did not have a Code of conduct and that the Respondent did not have a written contract of employment restrict the notice period to three months under the Employment Code Act and as such, the award of 36 months was not justifiable. 8.37 We also note that there was no evidence of shock, stress and trauma suffered by the Respondent as found by the learned Judge to justify the 36 months award in terms of the Swarp Spinning Mills case cited above. 8.38 In view of the above, we hold the view that an award of 6 months is justifiable to take care of the abruptness of the dismissal. 8.39 We accordingly set aside the award of thirty-six months salaries and substitute it for an award of damages equivalent to six months salaries with the terms and conditions of payment to remain as set out by the Court below. 9.0 CONCLUSION 9.1 The net result of our Judgement is that the appeal is substantially dismissed for lack of merit save for ground six which we have allowed. Jl7 9.2 This being an Industrial an L bour relations matter we shall make no order to costs. M. J. SIAVWAPA COURT OF APPEAL JUDGE A. M. BANDA-BOBO COURT OF APPEAL JUDGE J18