Priscilla Ngenda Simvula Kalisilira v Zambia National Commercial Bank Plc (SCZ JUDGEMENT NO. 8/2015) [2015] ZMSC 193 (6 February 2015)

IN THE SUPREME COURT OF ZAMBIA APPEAL NO. 130/2011 (147) SCZ JUDGMENT NO. 8/2015 HOLDEN AT NDOLA (CIVIL JURISDICTION) BETWEEN: SCZ/8/ 188/2011 PRISCILLA NGENDA SIMVULA KALISILIRA APPELLANT AND - ZAMBIA NATIONAL COMMERCIAL BANK PLC RESPONDENT CORAM: Mwanamwambwa, Ag. DCJ, Hamaundu and Wood, JJS. On 2 nd December, 2014 and 6 th February, 2015. For the Appellant: Mr. A. Ngulube-Messrs Tembo Ngulube and Associates. For the Respondent: No Appearance JUDGMENT ,vood, JS, delivered the judgment of the Court. CASES REFERRED TO: 1. Contract Haulage Limitecl v Ivlumbuwa Kamayoyo (1982) Z. R. 13. 2 . Wilson Masauso Zulu v Avon.dale Housing Project limited (1982 ) Z. R. 172. \.) J2 3. Nkhata and Four Others v The Attorney-General of Zambia (1966) Z. R. 124. 4. The Attorney-General v Marcus Kampumba Achiume (1983) Z. R.1 . 5. Zambia National Provident fund v Yekweniya Mbiniwa Chinua (1986) (148) Z. R.70. LEGISLATION REFERRED TO: Section 97 of the Industrial and Labour Relations Act, Chapter 269 of the Laws of Zambia. OTHER WORKS REFERRED TO: Employment Law in Zambia: Cases and Materials, W. S. Mwenda, Revised Edition. This 1s an appeal against a judgment of the Industrial Relations Court, dismissing the appellant's claim against the respondent for damages for unfair or wrongful dismissal. The brief facts of this case are these. Sometime in December of 2006 , the appellant who was a Senior Manager in the respondent's Internal Audit and Control department, went on leave and was due back on 10th January, 2007. On 10th January, 2007, the appellant did not report for work at 08:00 hours as expected but dropped off a hospital appointment card with her supervisor's secretary sometime . ...., J3 (149) in the afternoon. The appointment card showed that the appellant was due for admission at Care for Business Hospital at 16:00 of that day. The appellant did not return to work until 25 th January, 2007 when she presented a medical certificate to her supervisor dated 19th January, 2007, showing that she had been operated upon on 10th January, 2007. The medical certificate also showed e that the appellant was medically unfit for work for the period 10th January, 2007 to 24 th January, 2007. Upon her return, the appellant was suspended from work and subsequently charged with three offences. These were unauthorised absence from work for more than 10 consecutive working days under clause 1.6 of the Grievances and Disciplinary Procedure Code No. HRD/GDC/ 10 2006 for non-represented staff, failure to comply with established procedures under clause 1. 9 of the Grievances and Disciplinary Procedure Code and uttering under clause 7.1 of the Grievances and Disciplinary Procedure Code. The appellant accordingly exculpated herself and attended a disciplinary hearing before the Frauds and Disciplinary Committee which found her J4 (150) guilty of all the charges. Despite the fact that the charge of desertion carried with it the penalty of dismissal, the Frauds and Disciplinary Committee decided to demote the appellant to the position of manager. The appellant was not satisfied with the decision and appealed against the demotion to the Appeals Committee on 21 st October, 2007. The Appeals Committee revie,ved e her case on 27 th November, 2007. In a letter dated 12th December, 2007, the Appeals Committee rescinded the decision of the Frauds and Disciplinary Committee and substituted it with dismissal. In the notice of complaint and accompanying affidavit filed on 6 th May, 2008, the appellant contended that the dismissal was not only unfair, unlawful and wrongful, but also calculated to get rid of her on account of the various audits that her department had e conducted, which management disagreed with. In response, the respondent contended that the appellant was absent from work without permission from 10th January, 2007 up to 25 th January, 2007 contrary to clause 1.6 of the Grievances and Disciplinary Procedure Code. The respondent took issue with the • \, JS (151) fact that the medical certificate that the appellant presented to her supervisor upon her return was dated 19th January, 2007 as opposed to 10th January, 2007 when she was operated on. The dismissal of the appellant was not unfair or wrongful since the correct disciplinary procedure was followed and the appellant was found culpable as charged. Further, the decision of the Appeals e Committee to dismiss the appellant was in exercise of the committee's powers under clause 8.2.1.2 of the Grievance and Disciplinary Procedure Code, which empowered it to rescind, reduce or increase the penalty meted out by the Frauds and Disciplinary Committee. In its Judgment, the trial court found that the appeal lacked merit and dismissed it. The trial court found as a fact that on 10th January, 2007, the appellant was due from leave at 08:00 hours but only reported later in the day to drop off a hospital appointment card. The appellant did not seek permission or leave of absence to attend to her rnedical condition contrary to the respondent's Grievance and Disciplinary Procedure Code. An appointment with a • J6 (152) Doctor or medical report in itself did not amount to leave of absence as it only served the purpose of supporting an employee's request for leave of absence. There is still a duty on an employee to make a formal request for leave. The trial court also found that there was no impropriety in the way the respondent handled the case. This was because the appellant was given an opportunity to be heard on e all the charges leveled against her by management and was further accorded an opportunity to be heard on appeal in compliance with our decision in the case of Contract Haulage Limited v Mumbuwa Kamayoyo 1 . The trial court refused to accept the appellant's clairn that she was dismissed on account of the contentious audits that her department conducted because there was sufficient evidence that she was absent without prior pern1ission. The appellant was dissatisfied with the judgment of the trial court and filed in three grounds of appeal. Counsel for the appellant solely relied on the appellant's heads of argument which he filed in open court at the hearing of the appeal. There was no appearance on behalf of the respondent, having filed a notice of non-appearance J7 (153) on 24th November, 2014. Counsel for the respondent, however, did file in the respondent's heads of argument. Ground one of the appeal was that the trial court erred in law when it held that the respondent was on firm ground when it dismissed the appellant, when the offences that the appellant was facing were not dismissable. In respect of ground one of the appeal, counsel for the appellant submitted that clause 1.6 of the schedule of offences in the Grievance and Disciplinary Procedure Code No. HRD/GDC/ 10/2006 which provided for the offence of unauthorised absence from work for more than ten consecutive working days stipulated that breach of the aforesaid clause entitled the respondent bank to discharge an employee and not to dismiss them. Further, clause 5.1 .6 of the Grievance and Disciplinary Procedure Code defined discharge of an employee as: "Termination of an employee's contract of employment by giving the required notice as per conditions of service or payment of the gross salary in lieu of such notice. " ' ' J8 (154) It was further submitted that clause 1. 9 of the schedule of offences in the Grievance and Disciplinary Procedure Code which provided for the offence of failure to comply with established procedures/ standing instructions did not provide for dismissal of a first offender but instead provided for a warning. Counsel for the appellant pointed out that clause 5.1. 7 of the e Grievance and Disciplinary Procedure Code defined dismissal of an employee as: "Temiination of an employee 's contract of employment w ithout gwmg notice or payment of the gross salary in lieu of notice. " Counsel submitted that neither clause 1.6 nor L 9 of the schedule of offences provided for the dismissal of an offender. Therefore , the trial court erred when it held that the respondent 4t was on firm ground when it dismissed the appellant frorn employment. Ground two of the appeal was that the trial court erred in law· when it failed to hold that the dismissal was wrong. Counsel for the appellant subn1itted that having shown in ground one of the appeal t - J9 (155) that the appellant ought to have been discharged the respondent should have followed the correct procedure by imposing the correct penalties. The correct procedure was for the respondent to terminate the contract of employment by giving the required notice as per the conditions of service or payment of the gross salary in lieu of notice in respect of the charge of absenteeism. As for the e offence of failure to comply with established procedures/standing instructions, the respondent should have merely admonished the appellant. Failure to follow laid down procedures when effecting a termination of employment amounts to wrongful dismissal. Counsel referred us to page 105 of Employment Law in Zambia: Cases and Materials, by W. S Mwenda in which the author states that: "When considering whether a dismissal is wrongful or not, the f01m rather - than the merits of dismissal must be examined. The question is not why but how the dismissal was effected. The commonest incidence of wrongful dismissal is where the employer fails to give the requisite notice ........... " Counsel contended that the dismissal of the appellant was wrongful as it was in contravention of the clauses 1.6 and 1.9 of the Disciplinary Code of Conduct. - . . ' , t -. J10 (156) Ground three of the appeal was that the trial court erred in law and fact when it held that the respondent had proved the offences of absenteeism and failure to follow established procedures as this resulted from the unbalanced way it analysed the evidence. In ground three of the appeal, counsel for the appellant submitted that the trial court dismissed the appellant's complaint on account of the unbalanced analysis of the evidence before it. There was evidence before the trial court which showed that the appellant dropped off the appointment card dated 10th January, 2007 which her supervisor, a Mrs. Muyunda, received on the same day. Mrs. Muyunda was aware that the appellant was unwell and even signed the appointment card, which implied that perrnission was granted to the appellant. However, the judgment of the court below clearly indicated that the trial court did not take this evidence into account because the trial court did not mention it in the judgment. Counsel cited the case of Wilson Masauso Zulu v Avondale Housing Project limited2 to illustrate the duty of a court to adjudicate upon every aspect of a suit in order to determine all Jll (157) matters in controversy in finality. Counsel argued that the mere fact that the appellant reported for work late on 10th January, 2007 worked in her favour as it showed that she was indeed sick. Counsel for the respondent advanced one ground in response to the appeal. In it, counsel argued that all the three grounds of appeal advanced by the appellant were against findings of fact. e Therefore , this appeal was incompetent in view of Section 97 of the Industrial and Labour Relations Act, Chapter 269 of the Laws of Zambia which states that: "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." Counsel also referred us to the case of Nkhata and four others v The Attorney-General of Zambia3 in which we held that: "A trial Judge sitting alone without a jury can only be reversed on questions of fact if: (1) the Judge erred in accepting evidence; or (2) the Judge erred in assessing and evaluating the evidence by taking into account some matter which he should have ignored or failing to take into account something which he should have considered; or J12 (158) (3) the Judge did not take proper advantage of having seen and heard the witnesses; (4) external evidence demonstrates that the Judge erred in assessing the manner and demeanour of witnesses." Counsel also cited the case of The Attorney-General v Marcus Kampumba Achiume4, which affirms the principles laid do .. ~n in the case of Nkhata and four others v The Attorney-General of Zambia3 . - Counsel submitted that on the basis of the evidence on record, it could not be argued that the lower court's findings of fact ,vere perverse or made in the absence of relevant evidence. Counsel urged us to dismiss this appeal as the appellant had failed to demonstrate that the lower court erred in assessing and evaluating the evidence before it. We have considered the evidence that was before the trial court, the submissions of counsel and the judgment delivered in the court below. The respondent's combined response to all three grounds of appeal was that the entire appeal was misconceived on account of Section 97 of the Industrial and Labour Relations Act. Our considered view is that grounds one and two of the appeal are . - J13 (159) on a point of mixed law and fact and are therefore properly before us. Only ground three of the appeal is against findings of fact. This appeal is, therefore, properly before us. We propose to deal vvith grounds one and two of the appeal together since the arguments advanced in support of these grounds are similar. The question to be considered in grounds one and two e of the appeal is whether the respondent used the correct mode of exit for the appellant. Counsel for the appellant argued that the appellant should have been discharged from employment and not dismissed as was the case in this appeal. We agree with counsel for the appellant on this point. This is because clause 1.6 of the Grievance and Disciplinary Procedure Code from which the charge of desertion was derived expressly provided for a discharge. In following the provisions of clause 5.1.6 of the Grievance and Disciplinary Procedure Code, the respondent should have terminated the appellant's employment by giving the required notice as per conditions of service or payment of the gross salary in lieu of such notice . In fact, the letter of 5 th October, 2007 on which the j J14 (160) appellant based her appeal to the Appeals Committee did indicate that one of the offences the appellant was charged with was punishable by discharge. We have no doubt that this was in reference to the charge of desertion. However, we cannot lose sight of the fact that the appellant was guilty of the charge of desertion. While it is accepted that the - appellant underwent an operation on 10th January, 2007, she did not avail the medical certificate declaring her medically unfit to the respondent until she returned to the office on 25 th January, 2007 . We cannot agree more with the lower court's observation that there would be anarchy in places of work if employees were proceeding on leave upon recommendation by a doctor, without obtaining formal authority from the employer. We agree with the findings of the lower court that the appellant was absent from work for more than ten consecutive v1orking days, without obtaining the requisite permission from the respondent. We have observed that the respondent substantially complied with the procedural requirements by formally charging the JlS (161) appellant and according her an opportunity to be heard, both at the main hearing and on appeal. The only mistake the respondent made was to impose a wrong penalty. The question is whether the appellant suffered any injustice as a result of the imposition of a wrong penalty. In the case of Zambia National Provident Fund v Yekweniya Mbiniwa Chirwa4 we held that: "Where it is not in dispute that an employee has committed an offence for which the appropriate punishment is dismissal and he is also dismissed, no injustice arises from a failure to comply with the laid down procedure in the contract and the employee has no claim on that ground for wrongjit.l dismis$al or a declaration that the dismissal is a nullity." Having found that the appellant misconducted herself, we do not think that she suffered any injustice on account of the respondent's mistake. The respondent was justified in tern~inating the appellant's employment and her dismissal was neither unfair nor wrongful. The penalties of dismissal and discharge both entail the terrnination of an e1nployee's contract of employment. The only distinction is that the latter required notice or payn1ent in lieu of notice. We accordingly substitute the appellant's dismissal with a discharge as provided for under clause 1. 6 of the Grievance and J16 (162) Disciplinary Procedure Code. The appellant will be paid one month gross salary together with interest, 1n accordance with the respondent's conditions of service as at 12th December, 2007 . Interest is payable at the short term deposit rate from the date of the co1nplaint to the date of judgment and thereafter at the average lending rate as determined by Bank of Zambia, up to the date of e payment. Therefore, grounds one and two of the appeal succeed only in relation to the penalty imposed on the appellant. We now turn to ground three of the appeal. We agree with counsel for the respondent that this ground is challenging findings of fact made by the trial court. The cases of Nkhata and four others v The Attorney-General of Zambia3 and The Attorney-General v Marcus Kampumba Achiume4, which the respondent has cited clearly outline the conditions that must prevail before an appellate Court can reverse findings of fact made by a trial court which had the opportunity to hear the testimony of and observe the demeanour of the witnesses. We do not accept the appellant's argument that the trial court did not properly analyse the evidence J17 (163) adduced at trial before dismissing the appellant's claim. The judgment of the court below outlined the evidence of the respondent's three witnesses from which the trial court concluded that apart from dropping off the appointment card with Mrs. Muyunda's secretary, the appellant did not formally request for leave of absence on account of illness. The evidence on record further reveals that owing to the appellant's continued absence, Mrs. Muyunda sent Mr. Davies Kafwimbi, the assistant manager in the audit department, to Care for Business Hospital to check on the appellant's condition. At the Hospital, Mr. Kafwimbi was informed that the appellant was discharged on the same day that she was operated on. The appellant admitted in her testimony that she was absent from work for fourteen days. She also admitted that other -4t than the appointment card dated 10th January, 2007, she did not communicate her ailment to the respondent. Counsel for the appellant cannot, therefore, argue that Mrs. Muyunda impliedly granted the appellant permission because her secretary stamped the appointment card. Clearly, the date stamp on the appointment J18 (164) card was merely an acknowledgment of receipt of the appointment card which should not be construed as permission. In our view, the findings of fact by the lower court were properly made and complied with the principles laid down in Nkhata and four others v The Attorney-General of Zambia3 and affirmed in the case of The Attorney-General v Marcus Kampumba Achiume4 and numerous other cases. The appellant has failed to demonstrate that the trial court erred in evaluating the evidence before it. This ground of • appeal lacks merit and is accordingly dismissed. The net result is that this appeal partially succeeds in view of the award made in respect of grounds one and two of the appeal. The parties shall bear their respective costs. ICE ~~7 ................ ~~-................ . E. M. HAMAUNDU SUPREME COURT JUDGE \ . ............ . SUPREME COURT JUDGE