Protea Hotels Zambia v Longa William Mulikelela (APPEAL 179/2023) [2025] ZMCA 116 (20 August 2025)

IN THE COURT OF APPEAL OF ZAMBIA HOLDEN AT NDOLA (Civil Jurisdictio n) APPEAL 179/2023 BETWEEN: PROTEA HOTELS ZAMBIA APPELLANT AND LONGA WILLIAM MULIKELELA RESPONDENT CORAM: KONDOLO, MAKUNGU AND CHEMBE JJA On 13th August 2025 and 20th August 2025 For the Appellant Mrs. E. Changufu - Mesdames Theotis Mutemi Legal Practitioners. For the Respondent No Appearance JUDGMENT Chembe JA delivered the judgm en t of the Cour t . Cases referred to: 1 . Moses Choonga v Zesco Recreation Club Itezhi Tezhi (SCZ Appeal No 168/2013 2 . Supabets Sports Betting v Batuke Kalimukwa SCZ Appeal No. 17 o/2006 3. Konkola Copper Mines PLC v Hendrix Mulenga Chileshe SCZ Appeal No 94/2015 4. Zambia Telecommunications Company Limited v Eva Banda 5. Zambia National Provident Fund v Yekwenya Mbuuwa Chirwa ( 1968) ZR 70 (SC) 6. Swarp Spinning Mills PLC v Sebastian Chileshe and others (2002) ZR 23 (SC) 7. Zambia National Building Society v Ernest Mukwamataba Nayunda SCZ No 11 of 1993 8. Winnie Situole Mwenda and Chanda Chungu 9. Kambatika v Zambia Electricity Supplies Corporation Limited Appeal No 186/2000 10. Attorney General v Richard Jackson Phiri (1988-1989) ZR 121 11. Dennis Chansa v Barclays Bank Zambia Limited PLC SCZ Appeal No 111/2011 12. Care International Zambia v Misheck Tembo SCZ Appeal No 57 of 13. Attorney General v Richard Jackson Phiri (1988-1989) ZR 121 Works referred to: 1. Winnie Sithole Mwenda and Chanda Chungu, A Comprehensive Guide to Employment Law in Zambia, (LexisNexis, Johannesburg, 2025) Second Edition 1.0 INTRODUCTION 1. 1 This appeal emanates from the judgment of the High Court by Chisunka J dated 2 nd February 2023. 1.2 In the said judgment, it was held that the Respondent's dismissal was unfair and the Appellant was ordered to pay six months salary as damages. J2 2.0 BACKGROUND 2.1 The Respondent was employed by the Appellant as the Hotel General Manager until October 2015 when he was dismissed following a disciplinary hearing. 2.2 In August 2015, he was accused of having failed to follow procedures when handing over cash to the accountant for banking. The matter was reported to the Zambia Police Service and the Drug Enforcement Commission. 2 .3 The Respondent was subsequently suspended on 17th September 2015 in order to facilitate for an internal investigation. He was later charged with a disciplinary offence of dishonesty, theft and fraud. He was notified of the disciplinary hearing scheduled for 15th October 2015. The charge was authored by his supervisor, Mr. Stephen Kwint. 2.4 He attended the disciplinary hearing and noted that Mr. Kwint was the chairperson. Following the disciplinary hearing, the Respondent was dismissed. J3 2.5 Displeased with the turn of events, the Respondent commenced proceedings in the Industrial Relations Division of the High Court seeking damages for unfair dismissal and unpaid dues. 3.0 DECISION OF THE LOWER COURT 3.1 After analysing the evidence and the arguments before it, the trial Court found that the Appellant had breached the rules of natural justice by allowing the charging officer to chair the disciplinary hearing. 3.2 The trial Court considered the circumstances that constitute unfair dismissal and referred to legal authorities which decided that where the charging officer was also the chairperson of the disciplinary committee, the hearing was considered flawed for impartiality. 3 .3 The Court below found that Mr. Kwint, having initiated the disciplinary proceedings against the Respondent, played a major role in prosecuting the complaint. He should therefore have not sat as chairman in the disciplinary hearing as doing so made him the accuser and judge. J4 3.4 Following the finding of unfair dismissal, the Court below proceeded to award the Respondent six months' salary in damages. The claims for unpaid salaries and leave pay were dismissed on the ground that they were not proved to the required standard. 4.0 THE APPEAL 4.1 Disenchanted with the decision of the court below, the Appellant has approached this Court advancing three grounds of appeal as follows: 1. The learned Judge in the Court below erred in law and in fact when it found that the Appellant had unfairly dismissed the Respondent on account of breach of procedure when the Appellant's operations manager who initiated the investigation against the Respondent also chaired the disciplinary meeting when it ought to have found that the Respondent was wrongfully dismissed. 2. The learned Judge in the Court below erred in law and fact when it awarded damages for unfair dismissal to the Respondent despite evidence of wrong doing on the part of the Respondent and without considering that the offence that the Respondent committed was a dismissable offence. 3. In the alternative, the Court below erred when it awarded the Respondent 6 months salary including all allowances JS and perquisites which was on the higher side and did not reflect awards by Court in situations where an employee is dismissed under the circumstances in which the Respondent was dismissed. 4.2 In the heads of argument in support of the appeal, the Appellant's counsel addressed the grounds of appeal in turn. In relation to the 1s t ground of appeal, it was submitted that the trial Judge fell into grave error when he made the finding of unfair dismissal instead of wrongful dismissal. 4. 3 Relying on the case of Moses Choonga v Zesco Recreation Club Itezhi Tezhi 1 , the Appellant submitted that unfair dismissal occurred when an employee's contract of employment was terminated in breach of any statutory provision linked to the protection of the right of employment. 4. 4 We were referred to the cases of Konkola Copper Mines PLC v Hendrix Mulenga Chileshe2 , Supabets Sports Betting v Batuke Kalimukwa2 and Zambia Telecommunications Company Limited v Eva Banda3 on the distinction between unfair dismissal and wrongful dismissal. It was submitted that unfair dismissal focused on the reason behind the dismissal and not the form. The Appellant referred to the reasoning of the J6 t rial Judge th at the Respondent did not adh ere to th e rules of natural justice by allowing the chargin g officer to sit as chairman of the Responden t 's disciplinary h earing. 4.5 In relation to the second grou nd of appeal, the Appellant argued that the Respondent was charged with a dismissable offence wh ich was p roved . It was su bmitted th at th e Appellant complied with its disciplinary procedure code and it was established th at the Respondent caused a loss of ZMW 2 16 869.66 and USD 6802.00 to th e company. 4.6 Ou r attention was drawn to the Supreme Court decision in the case of Zambia National Provident Fund v Yekweniya Mbiniwa Chirwa5 where it was held that the failure to a dhere to disciplinary procedure did not render the dismissal invalid wh ere a dismissable offence was comm itted by the employee. Th e Appellant referred to the learned authors of 'A Comprehension Guide to Employment Law in Zambia' who expressed the same views on th e issue as the Supreme Cou rt in the above case. J7 4.7 Based on the foregoing authorities, the Appellant submitted there was no injustice done where an employee is dismissed without following the procedure if he committed the offence. We were urged to allow the 2 nd ground of appeal. 4.8 With respect to the 3 rd ground of appeal, the Appellant challenged the award of 6 months salary including allowances and perquisites as damages for unfair dismissal. The Appellant contended that the award was on the high side. Reference was made to the case of Swarp Spinning Mills PLC v Sebastian Chileshe and others6 where it was held that the normal measure of damages usually related to the applicable notice period. 4 .9 It was submitted that given that the Respondent's conduct had caused loss to the Appellant and the award of 6 months salary amounted to unjust enrichment. The case of Zambia National Building Society v Ernest Mukwamataba Na-yunda7 was cited in support of the proposition that the essence of damages was to place the injured party in the same position he would have been and not to be unjustly enriched. J8 4.10 It was argued further that the conduct of the employee which contributed to the dismissal should be taken into account when considering the measure of damage as guided by the learned authors of 'A Comprehensive Guide to Employment Law in Zambia'. We were urged to interfere with the damages awarded by the Court below. 5.0 RESPONDENT'S ARGUMENTS IN RESPONSE 5.1 The Respondent filed his heads of argument on 25th July 2023. Regarding the 1st ground of appeal, the Respondent conceded that the trial Court erred when it held that the dismissal was unfair instead of wrongful. However, the Respondent submitted this Court had the power, pursuant to section 24 (1) (a) of the Court of Appeal Act to amend the conclusion of the lower Court from unfair to wrongful dismissal. We were urged to exercise our discretion to interfere with the conclusion of the Court below. 5.2 In response to ground 2, the Respondent submitted that he did not steal any money from the Appellant as the real culprit, J9 Timothy Matanda, had admitted having defrauded the Appellant and was facing criminal charges. 5. 3 Relying on the cases of Kam.batika v Zambia Electricity Supplies Corporation Limited8 and Attorney General v Richard Jackson Phiri9 where it was held that there has to be a substratum of facts to support the charge and that th e rules of natural justice have to be complied with, he retorted that the argument by the Appellant that th e Respondent had committed a dismissable offence was flawed as the evidence showed and the Respondent admitted it was Timothy who stole the money. 5 .5 Regarding the 3 rd ground of appeal, the Responden t referred us to the case of Dennis Chansa v Barclays Bank Zambia Limited10 wh ere the Supreme Court guided that there should be a progressive increase in damages as the global economies deteriorate. He supported the lower Court's award of 6 months salary as damages. We were urged to dismiss the appeal. 6.0 HEARING 6.1 At the hearing, the Appellant's Counsel relied on the filed heads of argument. She briefly augm ented th e arguments by JlO submitting that the court below erred in going beyond the one month notice in the absence of any justifiable cause. The Respondent's advocate filed a notice of none attendance and did not appear. 7 .0 CONSIDERATION AND DETERMINATION 7.1 We have carefully considered the record of appeal together with the arguments by both sides. The main issue for consideration is whether the Court below erred in concluding that the dismissal of the Respondent was unfair. 7.2 The Appellant has charged that the trial Court erred when it found that the Respondent had been unfairly dismissed based on the fact that the charging officer sat as chairman at the disciplinary hearing. The Respondent has conceded that the Court below erred when it arrived at the conclusion that the dismissal was unfair on the facts presented. 7.3 In the case of Care International Zambia v Misheck Tembo11 , the Supreme Court cautioned adjudicators against careless use of the words unlawful termination, unfair dismissal and wrongful dismissal as they connoted different things. In that Jll case, the Supreme Court took time to define the above phrase when it quoted Sprack John Employment Law and Practice as follows; "Wrongful dismissal essentially is a dismissal which is contrary to the contract and its roots lie in common law. The remedy is usually limited to payment for the notice period ..... (in contract) unfair is dismissal contrary to statute .... unfair dismissal is therefore a much more substantial right for the employee and the consequences for the employer of dismissing unfairly are much more severe than those which attend a wrongful dismissal." 7. 4 The record of appeal shows that the evidence adduced showed that Mr Kwint, the Appellant's operations Manager who initiated the investigations against the Respondent and was the charging officer, also chaired the disciplinary hearing. The trial Judge correctly found that this created an apparent bias which was contrary to the rules of natural justice. He found at page J 19 that the dual role played by Kwint as accuser and judge created substantial doubt on the impartially of the disciplinary hearing and made him a judge in his own cau se. He held that the bias rule of natural justice had been flouted . J12 7.5 Going by the guidance of the Supreme Court in the case of Care International Zambia v Misheck Tembo, the above findings did not reveal breach of a statutory provision which would have led to a verdict of unfair dismissal. The findings of the lower Court related to the form or procedure and the conclusion ought to have been wrongful dismissal. 7 .6 It is therefore clear from the foregoing that the Court below erred in finding that the Respondent was unfairly dismissed. However, the matter does not end there. The Respondent has implored us to tinker with the Judgment of the lower Court pursuant to section 24 (1) (a) of the Court of Appeal Act and find on the evidence on record that his dismissal was wrongful. 7.7 Section 24 (1) (a) of the Court of Appeal Act provides that; "The Court may on hearing of an appeal in a civil matter; (a) Confirm, vary amend or set aside judgment appealed against or give judgment as the case may require." On the basis of the evidence on record we shall set side the fanding that the Respondent's dismissal was unfair and replace it with a holding that the dismissal was wrongful. J13 7.8 In ground 2 , the Appellant challenges the award of damages in view of the fact that the Respondent's conduct resulted in loss to the Appellant and that the offence he was found guilty of was a dismissable offence. The Appellant's argument under this ground appears to be that because the Respondent was found guilty of com1nitting a dismissable offence at the disciplinary hearing, it did not matter if the prescribed procedure was not adhered to. 7 . 9 Indeed in the case of Zambia National Provident Fund v Yekwenya Mbuuwa Chirwa the Supreme Court held that: "Where it is established that an employee committed an offence for which the appropriate punishment is dismissal and is in fact dismissed, there is no injustice that will arise from a failure by the employer to comply with the disciplinary procedure in the contract and the employee has no claim on that ground for wrongful dismissal." 7 . 10 The learned authors of "A Comprehensive Guide to Employment Law in Zambia" in commenting on the Yekweniya Chirwa case stated that: J14 • "Where an employee is dismissed for misconduct or other serious offence, rules of procedure play a secondary role and there is no doubt that failure to comply with a disciplinary procedure does not negate a justified dismissal." We note that in the Yekweniya Chirwa case, the employee admitted having stolen his employer's money and made some efforts to repay it. 7 .11 In the present case the Respondent denied any wrong doing in his exculpatory letter. The minutes of the disciplinary hearing at page 496a of the Record also show that he denied having behaved dishonestly or defrauding the Appellant. He placed the blame on the officer from the accounts department who used part of the cash collected for banking. 7.12 In our view, the Respondent was entitled to be heard by an impartial committee which could consider his defence. The argument by the Appellant that the overriding consideration should be whether the Respondent committed a dismissable offence is to oversimplify the issue. It would be absurd to J15 • suggest that rules of procedure become inconsequential where the employee is simply accused of committing a dismissable offence. 7.13 As correctly put by the learned authors of 'A Comprehensive Guide to Employment Law in Zambia', this proposition will only apply where it is not in dispute that an employee has committed a dismissable offence. The Respondent was charged with the offence of dishonesty, theft and fraud . The particulars of offence were that he had misappropriated via means of theft and fraud resulting in loss of funds by the Appellant (page 46 of the Record) . It is common cause that Timothy Matanda admitted having stolen the missing funds and there was no evidence that he implicated the Respondent. In view of this, we are not satisfied that there was a substratum of facts which supported the finding that the Respondent had stolen the money or was dishonest. There was a dispute as to whether he committed the offence. 7 . 14 Although the trial Court is precluded from sitting as an appellate Court to consider the decision of the disciplinary committee as held in the case of Attorney General v Richard J16 Jackson Phiri.12, the Court may inquire into whether the disciplinary power was validly exercised. In our view, the App ellant breached the rules of natural justice by allowing Mr. Kwint who played an active role in th e investigation and prosecution of the Respondent to chair the disciplinary hearing. As a result, the disciplinary proceedings were tainted and resulted in a wrongful dismissal. Th e second ground of appeal accordingly fails . 7.15 Regarding the 3 rd ground of appeal, the Appellant challenges the quantum of damages awarded. Having interfered with lower Court's finding th at he was unfairly dismissed and replacing it with wrongful dismissal, the damages awarded have to be realigned with the new finding. 7. 16 In the Care International Zambia Limited case above, the Supreme Court guided that wrongful dismissal attracts less punitive measures than unfair dismissal. As correctly submitted by the Appellant, the normal measure of damages for wrongful dismissal is the applicable notice pay. However, we are cognizant of the depressed job market in our country and are in no doubt that the Respondent may not find an equivalent job J17 • • for a long time. In view of this, we are of the view that the award of 6 months salary as damages in the circumstances of this case is fair. We find no basis to interfere with the award by the court below. 8.0 CONCLUSION 8.1 All the grounds of appeal having substantially failed, the appeal is dismissed in its entirety. The matter having originated from the Industrial Relations Division of the High Court, we make no order for costs. -:::::2----~=====:;::::::::::~ ~ ............................................... M. M. KONDOLO SC COURT OF APPEAL JUDGE C. K. MAKUNGU COURT OF APPEAL JUDGE ......•••.••••.•................•••• Y. CHEMBE COURT OF APPEAL JUDGE J18