Mutakwa v ZESCO Ltd (Appeal 166 of 2008) [2010] ZMSC 8 (12 November 2010)

JI IN THE SUPREME COURT OF ZAMBIA APPEAL NO. 166/2008 HOLDEN AT LUSAKA (Civil Jurisdiction) BETWEEN: REES MUTAKWA AND ZESCO LTD APPELLANT RESPOND! Coram: Chibesakunda, Silomba and Mwanamwabwa JJS. On 8th April 2009 and on 12th November, 2010. For the Appellant: For the Respondent: Mr A. Tembo of Messrs Tembo and Company. Mr Chilunda. Principal Legal officer_________ _________________________ JUDGMENT________________ Chibesakunda, JS Delivered the Judgment of Court. Cases referred to: 1. ZNPF VS YEKWENIYA MBINIWA CHIRWA (1986) ZR. 70. 2. WARD V. BRADFORD CORPORATION (1971), 70 L. G. ZR. 27. 3. LISWANISO SITALI AND 18 OTHERS VS MOPANI COPPER MINES PLC 4. MATALE J VS ZCCM 1995-1996 ZR. P157. Legislation referred to 5. SECTION 26A OF THE EMPLOYMENT ACT CAP 268. The delay in delivering this Judgment is deeply regretted. This is due to circumstances beyond our control. This is an appeal against the Industrial Relations Court’s Judgment in a complaint by the Appellant against the Respondent claiming as follows:- A. Unlawful dismissal for unsubstantiated allegations of gross negligence of duty. B. Discrimination and seeks the following remedies; (1) Damages for unlawful and wrongful dismissal. J2 (2) Interest and (3) Costs. The Industrial Relations Court dismissed the complaint hence this appeal before us. The facts before the Industrial Relations Court were briefly that, the Appellant was employed as a Regional Manager for the Respondent in Mufulira on and about March, 2006. The Appellant was detained by the police on the case of misappropriation of funds meant for paying allowances for police officers who were engaged to guard the Respondent’s installations. The Appellant was released after 3 days. The Police dropped the charge on the understanding that the matter was being dealt with administratively. The Respondent set up a disciplinary committee to hear these charges against the Appellant. He was charged administratively with 3 offences relating to; (1) misappropriation of funds which were meant to be paid to Police Officers who were guarding the Respondents installations; (2) the second offence of abuse of office relating to the purchase of tiles meant to be fixed at the Managing Director’s official residence which were instead found at his private property and the re-routing of 11KV supply line; (3) the third charge was neglect of duty relating to the construction of ventilation fans. This J3 Disciplinary Committee sat and found him guilty of the two offences. These are, Gross Negligence and Abuse of Authority. He was thus dismissed on those two charges. He appealed against his dismissal to the Managing Director. His appeal was unsuccessful. He then complained to the Industrial Relations Court. Before the Industrial Relations Court, the Appellant told the Court that on the 7th of March, 2006, he was charged with the offence of misappropriation of funds, abuse of authority and negligent of duty. The first offence related to misappropriation of K36million from the Respondent which money was meant to pay allowances to Police Officers who were guarding the Respondent’s installations. The charge of abuse of office related to the directing of tiles which were meant to be fixed at the Managing Director’s residence to his private property and re-routing of 11KV supply line. The charge of neglect of duty related to the construction of ventilation fans under the 11KV supply line. The Appellant’s case was that with regard to the first offence, it was not his responsibility to handle Police allowances let alone cash from the Respondent to pay Police Officers as this was the responsibility of Mr. Mulenga the cashier and Mr. Banda the J4 Security Chief. He outlined the procedure saying his only role was to approve the time sheets. His evidence before the Industrial Relations Court is that although he was charged with the offence of misappropriation of funds, the disciplinary committee found that he was guilty of the offence of gross negligence, an offence he was not charged with. He told the Court that although he was not charged with the offence of gross negligence, he was found guilty of that offence. With regard to the offence of abuse of authority relating to the offence of overriding of purchase procedures, he told the Court that there was no such purchase procedures to be overridden by him. He further stated that, the purchase of tiles was approved by the regional management meeting at which the Human Resource Department reported that they had found an urgent need to repair the official institutional residence of the Regional Manager. He stated that at the same meeting, the Human Resource officer was tasked to undertake the task of renovating the residence. He said following that directive, the Human Resource Officer contracted a bricklayer, an electrician and a plumber to carry out the renovations. He stated that this same human Resource Officer purchased ceramics tiles together with the Regional Accountant and J5 that the Divisional Office was aware of this purchase exercise. Accordingly, the tiles found at his home which were meant to be fixed at the Managing Director’s resident, were there because it was a week end. He had verbal permission to keep these, tiles which were meant to repair the official institutional residence of the Regional Manager. The Respondent’s case was that the Appellant was the overall in charge and that he was personally in charge of handling the money which was meant to be allowances for Police Officers guarding its installations. On the charge of abuse of authority which related to being found in possession of tiles which were meant to be fitted at the Managing Director’s residence as part of the renovations. The Respondent advanced the evidence that, the Divisional Office did not sanction the Appellant’s keeping of the tiles at his private property. The Industrial Relations Court on that evidence before it observed firstly that, although there was evidence relating to each of the three charges, it was clear that not all of the three charges were part of the reasons of the Appellant’s dismissal. Only the two charges of gross negligence and abuse of office were the reasons for J6 his dismissal. The Court also found that the disciplinary committee had substituted the offence of misappropriation of funds to that of gross negligence. So the Industrial Relations Court addressed its mind to only these two offences on which the Appellant was dismissed. On the second charge of abuse of authority, the Industrial Relations Court found that there was no sufficient evidence to establish that offence. On the first charge of gross negligence, the Industrial Relations Court at page 6h (J8), agreed with the Appellant that he was never charged with that offence. Nevertheless, the Court addressed its mind as to whether by substituting the offence of misappropriation of funds with the offence of gross negligence, the Respondent took the wrong procedure and as such wrongly dismissed the Appellant. The Court addressed its mind to the argument by the Appellant that the Respondent by substituting the offence of gross negligence to that of misappropriation of funds thus denied him the chance to exculpate and defend himself on that new charge. The Industrial Relations put it this way: "The question is what was the effect of this on the Complainant’s ability to effectively defend him. We find as a matter of fact that the evidence shows that despite the variance cited above, J7 both parties dealt with both negligence and misappropriation and between the two, we find the evidence of actual involvement of the Complainant, rather than mere negligence, more compelling. It is not in dispute that the Respondent lost money and that the Complainant as head of the region, caused the loss either through direct involvement as the evidence strongly suggests or as a result of this failure to provide supervisory leadership to his cashier/accountant, Mr. Claudius Mulenga.” It is against this Judgment that the Appellant is appealing, raising two grounds of appeal: - (1) That the Court below erred in law and in fact when it held that the Appellant was properly dismissed on an offence of Gross Negligence, having found as a fact and agreeing with the Appellant at page 7, the paragraph of the Judgment that the appellant was never charged with this particular offence although he was ultimately dismissed of it. (2) That the Court below feel in gross err in law and in fact when it held at page 8 of the Judgment that the evidence shows that despite the variance in offence, both parties dealt with both negligence and miss appropriation of funds and found evidence of actual involvement of Appellant more compelling when it was at all time and from the beginning trite that the appellant did not have the opportunity to address his mind to the offence of Gross Negligence as his mind was addressed and exculpated himself J8 against the offence of Misappropriation of Funds ( where he was found innocent by Management), given the fact that the two offences are totally different Before this Court, Mr. Ngulube, Counsel for the Appellant relied on his filed heads of argument. In addition he made oral submissions. He raised certain points. In his oral arguments he told the Court that he will argue the two grounds together. His main contention was that the Industrial Relations Court did not observe the Rules of Natural justice. He cited Section 26A of the Employment Act Cap 268 and argued that, the appellant was ambushed by the findings of the Industrial Relations Court. According to him, at page (6g) the Industrial Relations Court made findings of fact that the Appellant was charged with the offence of misappropriation of funds but for unknown reasons, the Respondent dismissed the Appellant on a different offence of Gross Negligence which offence he was never charged with. This was totally in breach of the Rules of Natural Justice. He argued that the offence of misappropriation of funds attracts summary dismissal. For the offence of gross negligence, the penalty is a warning for the 1st offender, according to Clause 5, if an employee of the J9 Respondent is a second offender, the penalty is seven days suspension. The third offence attracts dismissal of the employee. Counsel further went on to say that in the letter of dismissal, the offence of Gross Negligence was mentioned just as a way of mentioning it. So the Industrial Court misdirected itself. In response, Mr. Chilunda(now late), Counsel for the Respondent supported the Industrial Relations Court’s Judgment. He argued that there was no unfairness in the way the Industrial Relations Court reached its conclusion. He argued that the Appellant went through the process of exculpating himself. He went before the Disciplinary Committee, gave evidence, called witnesses and produced all documentary evidence and that all those documents in the record of appeal, were produced before the Disciplinary Committee and were produced in the Industrial Relations Court by the Appellant. At the end of the day, the Industrial Relations Court concluded that there was overwhelming evidence that the Appellant was personally involved in the offence of misappropriation of funds and in the abuse of authority. There was not miscarriage of justice. He cited the case of Ward V Bradford Corporation (19711, where Lord Denning stated as J10 follows: “We must not force disciplinary bodies to become instrumented in the nets of produce. So long as they acted fairly and justly. Their decision should be supported.” We have seriously looked at the issues raised in this appeal. We have also looked at the record of appeal. On the question of procedural unfairness and the argument that there was need to adhere to the Rules of Natural Justice, the Appellant’s arguments on the principles of equality before the law in our view are correct. We agree that as argued and emphasized by the Appellant, there is need for equality before the law in all proceedings in our Courts in Zambia. However, we have seriously considered the approach the Industrial Relations Court took. The Industrial Relations Court looked at all these issues and posed a question as to whether the variation of the charge with which the Appellant was initially charged with and the substitution of the charge on which he was dismissed was seriously in breach of the Rules of Natural Justice. We cannot fault the Industrial Relations Court’s approach bearing in mind the approach that is taken in criminal matters where it is perfectly accepted that, if a criminal offence has the same ingredients with another criminal offence, it is accepted that even at JU the stage of conviction, the Court can substitute with a similar offence as that cannot prejudice the accused. In this particular case, there was no miscarriage of justice as misappropriation of funds has the same ingredients as the offence of gross negligence of duty, in that in both offences as we see it, there is the ingredient of fraud and lack of loyalty by the employee to his employers. This approach is pari pasu with the Court’s approach in criminal matters. Also, even more pertinent in this case, as we held in the case of ZNPF Vs Yekweniya Mbiniwa Chirwa1, we find that, since it was not in dispute that the Appellant was personally connected to the misappropriation of funds as supervisor, an offence which is dismissible, even if he was dismissed on gross negligence, no injustice occurred. We hold that the facts on record establish on the balance of probabilities that the Appellant was found wanting in his official capacity as a Regional Manager and this was a sufficient ground for the Respondent to dismiss the Appellant. As argued by Mr. Chilunda Counsel for the Respondent, citing the case of Liswaniso Sitali and 18 Others vs Mopani Copper Mines PLC3, “no employer can keep a dishonest employee in his employment.” The ruling by the Industrial Relations Court therefore, cannot be said to be J12 by the Industrial Relations Court therefore, cannot be said to be unfair. We hold that the Appellant was rightly dismissed. As this Court said in the James Matale Vs ZCCM4 case, it is incumbent upon the Industrial Court not only to deal with procedural requirements but also to go behind the evidence to render substantial justice. Therefore, in this case, there was neither miscarriage of justice nor any breach of the Rules of Natural Justice. With these observations, we hold that there is no merit in the appeal we dismiss the appeal. However because of the nature of the case we make no orders on costs. L. P. Chibesakunda SUPREME COURT JUDGE S. S. SILOMBA SUPREME COURT JUDGE (Retired)