Posts and Telecommunications Corporation v Sichilima (SCZ Appeal 35 of 1997) [1999] ZMSC 121 (3 March 1999)

IN THE SUPREME COURT OF ZAMBIA SCZ APPEAL Whjl OF 1997 HOLDEN AT LUSAKA (Civil Jurisdiction) BETWEEN: POSTS AND TELECOMMUNICATIONS CORPORATION APPELLANT AND BOTHWELL KALO SICHILIMA RESPONDENT Coram: Bweupe, DCJ; Chai la and Chirwa, JJS 12th May, 1998 and 3rd March, 1999 For the Appellant : Mr. C. M. Mukonka, Legal Counsel For the Respondent: Mr. H.3. Mbushi, Ndola Chambers JUDGMENT Chaila, JS, delivered the judgment of the court. This is an appeal by tne Post and Telecommunications Corporation Limited, hereinafter referred to as the Appellant, against tne decision of the High Court (Simachela, J), in favour of BOTHWELL KALO SICHILIMA, hereinafter referred to as the Respondent. The brief facts as found by tne learned trial judge were that tne respondent was an employee of the appellant. He was a senior Personnel Officer. In 1992 the respondent was charged with the offence of giving false information in order to obtain a loan and another false information in order to get Kb. JOu. Ine respondent was given cnance to exculpate himself, but he was dismisses. The respondent, in accoruance with tne Disciplinary Code of the appellant's Corporation, appealed to the Managing Director. A committee was set up to hear the appeal. The committee made a recommendation - J2 - to the Managing Director to reinstate the respondent in a lower position. Toe Human Resources Manager not satisfied with the appellant's committee, submitted a counter proposal to the Managing Director recommending that the dismissal should be uoheld. The Managing Director upheld the dismissal. The main issue before the learned trial judge was whether or not the rules of natural justice were followed in dealing with the respondent's case. The learned trial judge considered the evidence before him and the authorities referred to and the documents placed before him and he concluded that the procedure followed by the appellant was one which did not "smile to the rules of natural justice." The learned trial judge found in favour of the respondent and awarded him damages by way of 13 months salary at the existing scale of serving officers of his rank at Zampost, together with interest ac the current bank deposit rate from the date of the writ until payment together with costs to be taxed in default of agreement. Tne appellant relied upon the following grounds of appeal: 1. The judgment is not based on the evidence adduced in court by the witnesses. There are a lot of variances in what the witnesses testified and in what the Honourable Judge relied on in arriving at the final judgment. Therefore, judgment of the lower court was not based on the weight of evidence adduced and should not stand. 2. The Managing Director of the appellant's organisation was an independent arbitrator in the respondent's appeal. He was, therefore, entitled to hear the story in respect of the appeal from both sides, i.e. the respondent and the respresentative of the appellant's management before making the final decision. Therefore, the Honourable Judge of the lower court erred in finding that the management of the appellant's organisation should not have responded to the grounds of appeal by the respondent when the respondent appeald to the appellant's . Managing Director. - d4 - . In his written heads of argument on widen the learned counsel nas r.jii.jd, eno learned appellate counsel has attacked the evidence given by a Mr. 3rian Simwav/a who had given evidence on behalf of the respondent. The learned counsel argued that Mr. Simwawa had written a recommendation to the Managing Director's appeals committee, urging the comittee to uphold the earlier decision to demote the respondent. Mr. Simwawa therefore, proceeded on leave. He was not aware that the committee was deliberating on the respondent's appeal. Mr. Mbushi, counsel for the respoiiauut has argued on ground (1) that the rules of natural justice were not followed. He referred in nis argument to document No. 50 which was before the lowe^ court where it was resolved that the respondent would not be dismissed but demoted. Mr. Mbushi argued that the respondent was informed of tais decision verbally by Mr. Kachepa and that a letter would ba fol lowing but ho was surprised to receive a letter from the Manager Human Resources dismissing him. Mr. Simwawa was an employee of the appellant company and he dealt with the case involving du respondent. He told cnc court that he had made a recommendation to the Managing Director not to dismiss the respondent. He went on leave and when he came back he saw in the minutes of the disciplinary committee that the respondent had been dismissed. The recommendations were on the file and he read the recommendations. The respondent in his evidence also spoke of having been told that he had been demeted and chat a letter wou^ be following to that effect. The learned counsel for the appellant has criticised the learned trial judge for relying on document (6). It was very clear from the evidence before the learned trial judge that the disciplinary committee had made a decision to emote te respondent ana not to dismiss him. The respondent got a different reply from the decision of the disciplinary committee and the- reply was totally different from the disciplinary committee’s decision. Mr. Mbushi for the respondent relying on the documents before the lower court argued that the case was determined ay a one ?ir. Kacuapa and taut this was not in accordance with tne decision of the sciy< iHan' comini t te?:. me secona ground was that the respondent was given adequate hearing. Tne respondent exculpated aimself in writing but he appeared in person. The advocate further argued that with reference to other matters which were not before the disciplinary committee could not affect a decision of the disciplinary committee since he had already admitted tne offence. Mr. ifousai argued that according to document (6U) in tne record of appeal the officer who had charged the officer with the offence was on the panel and that the case was heard by one person. The respondent appealed to the Managing Director and according to Mr. Mbushi, conflicting evidence was given by Mr. Saorge Kalenga and Joel Kasama on the appeals. Mr. Mbushi finally argued that Vp appellant company acted contrary to the rules and regulations formulated by itself and that the learned trial judge was totally justified in coming to the conclusion that there was a breach of rules of natural justice. As regards ground three, the learned advocate for the appellant informed us that arguments in ground two covered this ground. On ground four, the learned advocate argued that the .offence the respondent committed was one that carried a punishment of summary dismissal or discharge in the appellant's disciplinary code. There are no provisions for demotion for such an offence. The respondent is not disputing the offence. Mr. Mbushi did not specifically argue or submit on ground four but in his written heads of argument he maintained that the appellant company did not follow its own disciplinary code. The evidence before the learned trial judge on tne offence disclosed that the appellant did not sticeed in putting the organisation on the medical bills. His request was stopped by tne respondent's immediate supervisor and no payment was made. The evidence further showed that the appellant paid for the car and that there was no fraud. Tne evidence before the learned trial judge showed that the resoondent had been charged, written to, he exculpated himself and he appeared before the disciplinary committee constituted to deal with the respondent's case. It is common knowledge that the disciplinary committee decided to demote the respondent and tne evidence before the learned trial judge was communicated verbally to che resoondent. ilia Ljmmitcee dcxijai'ucju u.i uas<; or Li._ /espoauj. K u.id uis committee maue a decxsioii. Taeir uecisioi was uO ^di.ijca one .'espoujonu and che respondent was verbally informed of the decision of the committee. A letter was written to him informing him of the dismissal, which decision was contrary to a decision of the disciplinary committee. One wouIg as*, who changed tne decision of the disciplinary committee from coat of demotion to tnac of uismissal? We are mindful of our Jecisior, involving fid and one emloyee. The employee aao been disciplined ano necessary procedural steps were taken. The disciplinary committee recommended demotion. The employee not being happy with the decision of tne committee appealed to tne Managing Director. The Managing Director realised taat the offence committed was very serious and a penalty provided for that offence was only dismissal. This court upheld tne dismissal. In this case the disciplinary committee made a decision that the respondent should be demoted. The decision was not communicated in writing to aim; instead somebody decidea to change the decision to that of dismissal. The facts ire different from tne other case. The learned trial juoge was referred to the case of Morgan Kachinga Chella (1978) ZLR, 247. He heavily relied on Iliac case. Hbdshi was also on a very firm ground when he argued that one man cnangad tne decision of the disciplinary committee and that was contrary to the disciplinary code of the appellant company, we are in complete ajreeme.it, having regard to the facts proved before the lower court that the decision of the disciplinary committee was demotion and that the appellant company acted contrary to their own disciplinary code in reversing that decision. The aopeal regarding liability is dismissed. On damages, the learned counsel for the appellant has argued that the award at current level was erroneous. He has argued that the award should be salary at the time cf separation with interest. This court nas been awarding as compensation to the parties wages at the time of separation and interest at the short term bank fixed deposit. We see no reason as to why we should depart from this. Tne learned trial judge was in error when he made an award uc tne current level. We set aside that award. We order that the respondeat be paid 13 months salary applicable at tire tim : of seoa-'ati jn at short terra fixed deposit interest fro.r the dutc of ti:o h'rlt of ‘'ir-wons to tho date of High Court judgraent; thereafter at -Z to the date of oayo-ent. Although tne appellants have partially succeeded* we are of the vinw that substantially the appeal has not succeeded. ’te award costs to the respondent. 3. K. 9WEUPE DEPUTY CHIEF JUSTICE M. S. CHAILA SUPREME COURT JUDGE D. K. CHIRWA SUPREME COURT JUDGE 3. The- Honourable Judge of the lower court erred in relying heavily on the evidence of one Brian Simwawa a witness, who was not even a member of any disciplinary committees which heard the respondent's case. 4. The offence that was committed by the respondent is one that carried the punishment of summarily dismissal and the respondent did not dispute committing the offence. Therefore, the damages awarded and the interest given was far excessive as the appellant was in whatever circumstances entitled to terminate the service of the respondent in the manner it did. Counsel for the appellants as regards to ground (1) has argued that the committee was appointed by the appellant company to hear the respondent's case. The committee reached a decision and the decision was communicated to the respondent. The respondent appealed against the decision. The appeals committee dismissed the appeal, The result was communicated to the respondent through a letter written to him. He mainatined that the learned trial judge misdirected himself in relying on document No. 6 which was not part of the appellant's appeal. The learned trial judge in his judgment referred to the contents of this document and quoted in extenso item (6A) which read: "A. We would recommend that the appeal for reinstatement be allowed but with a rider that he be demoted as originally recommended by the disciplinary committee. In making this recommendation, we are mindful of the contents of the DPS's instructive views would otherwise have our full support were it not for the legal position as advised by the legal department. B. Any lesser penalty deemed adequate short of the dismissal.” This document (6) was part of the court documents presented before the learned trial judge and the learned counsel has argued that tne learned trial judge should not have considered or relied on the contents of that