Rosemary Namukolo Situmbeko Kabwe v joop Jensen (in his Capacity as Chairman of the Board of Churches Health Association in Zambia) (APPEAL NO. 17/2016) [2017] ZMCA 500 (19 September 2017)

' IN THE COURT OF APPEAL OF ZAMBIA HOLDEN AT LUSAKA (CIVIL JURISDICTION) APPEAL NO. 17 /2016 BETWEEN: ROSEMARY NAMUKOLO SITUMBEKO KABWE APPELLANT AND JOOP JENSEN (in his Capacity as Chairman of the Board Of Churches Health Associalion in Zambia ) RESPONDENT CORAM: MAKUNGU, CHASHI, KONDO LO SC, JJA On 9th March, 20 17 and on 19th September, 2017 For the Appellant: Mr. M. Mu kande SC of Messrs ML Mukande & Company For the Responden t: Mr. H. JI. Nd hlovu S C of Messrs HH Ndhlovu & Company J U DGMENT KONDOLO SC, JA deliverer£ t h e Judgment of the Court. CASES REFERRE D TO: 1. Chilanga Cement Plc v Kasote Singogo (2009) Z. R. 8 2. Wilson Masauso Z u l ,, v Avondale Housing Project Limited (1982) Z. R. 3. Zambia Consolida t e d Copper Mines Limited v Matale S. C. Z. Judgment No. 199 6 J 2 of 15 4. Tolani Zulu and Musa Hamwala v Barclays Bank Zambia Limited (2003) Z. R. 127 5 . MusondaLumpa v Maamba Collieries Limited (1998-1989) Z. R. 217 6. Zambia Consolidated Copper Mines Limited vJames MataleS. C. Z. Judgment No. 9 Of 1996 7 . Redrilza Limited v AbuidNkazi and Others, S . C. Z. Judgment No. 7 of LEGISLATION REFERRED TO: 1. The Employment Act, Chapter 268, Laws of Zambia 2. The Industrial and Labour Relations Act, Chapter 269, Laws of Zambia This is an Appeal against the decision of the lower Court wherein the Appellant's entire claim for wrongful d ismissal a nd the accompanying damages was dismissed. The brief background of this case is that the Appellant was e mployed by the Respondent Or ganisation in 1995 as a Primary Health Care Officer and she rose to the position of Director Human Resource a nd Training. The Appellant told the trial court th at h er boss, Executive Director Mrs Karen Sichinga approved her application to pursue a course in Australia. Her boss su pported her application for a visa but la ter wrote to her warning that she was n ot allowed to go for more than four weeks. J 3 of 15 The Appellant discussed the issue with the Executive Director who said that she would give her 30 days study leave and the Appellant could u se her leave days for the re st of the period. Her boss later informed her that she h a d decided to reject her application to proceed for studies but h ad reluctantly approved her application for personal leave for 60 days. The Appellant decided to utilize her personal leave to pursue the course and proceeded to Australia. Three weeks later, her employment was terminated by the Respondent giving h er thr ee months notice as provided in her contract of service. The Appellant ave rred that her employment was terminated in bad faith and was thus wrongful and sh e sought an Order for re-instatement and the payment of dama ges. The Respondent, through RWl, Karen Sichinga, the Executive Director , m a intained that the Appellant's employment was terminated in accordance with Clause 11.2 of her condition s of service by payment in lieu of notice. RW 1 did not deny that she initially recommended the Appellant for t raining but later told her that s he could not go for more t h an one month. RW 1 said that even though she approved h e r leave for 60 d ays, she did not want h er to go. She agreed that the Appellant was free to do whatever sh e wanted during h er 60 days leave including going for training. J 4 of 15 RW2, told the trial court that the Appellant had just been promoted from Manager to Director and ought to have stayed back to learn about h er new duties and that the course she wished to pursue would not be beneficial in h er new capacity. However, the Board was of the view that if she insisted on going for training then she could be relieved of h er duties. The Lower Court found that the Appellant went on training using her leave days , which days did not cover the entire period of the training. It found that h er contract was terminated by giving her three months' notice and all her dues were paid. The Lower Court further found that there was n o breach of any procedural rules when her employment was termin ated and th at she was therefore not wrongfully dismissed. The Appellant is aggrieved with the entire Judgment of the Lower Court and has put forward four Grounds of Appeal, namely: 1. The trial Court misdirected itself in law and fact by its failure to look beyond the termination; J 5 of 15 2. The trial Court misdirected itself in law and fact by ignoring evidence to the effect that the termination was based on the Appellant's travel to Australia; 3 . The trial Court erred in law and fact by ignoring evidence on record stating that at the time of approval of her study leave she was in fact serving in the position of Director of Human Resource Planning and Development. 4. The trial Court erred in law and fact by ignoring evidence showing that the Appellant was lawfully on leave at the time she travelled to pursue the course in Australia. Counsel for the Appellant, Mr. Mukande SC, submitted that the reference to the Disciplinary procedure was a misdirection on the part of the Court b ecause the Appella nt did not state that sh e was dismissed and as su ch the order must be set aside. The Respondent through his Counsel Mr. Ndhlovu SC, submitted that the reference to unlawful d ismissal was introdu ced by the Respondent's in their submissions a n d therefore th e Cour t was not misdirected. In a id of ground one, two a n d three, State Counsel Mr. Mukande submitted that the Court failed to appreciate between a normal and an inordinate termination. He stated the case of Chilanga Cement Pie v Kasote J 6 of 15 Singogol1l that the Cour t relied on clearly illust rated the difference, which was why, in that case, the Supreme Court went behind the termination to ascertain the actual reasons behind it because the ter mination was ill motivated and wrongful. He contended that in casu the lower Court failed to a ppreciate th e evidence of bad faith w hich was clearly reflected on the record a nd in p a r ticula r the hostile r ela tionship between the Executive Director a nd the Chairman of the Board on one side and th e Appella nt on th e oth er . State Counsel Muka nde submitted tha t Section 85(5) of the Employment Act, cloth ed the lower Court with the power to go behind the termination a nd tha t as h eld in th e case of Wilson Masauso Zulu v Avondale Housing Project Limitedl2l this Court could interfere with the findings of the lower Court. He a rgued that th e train of events shows that the n otice given to the Appella nt by the Respondent was m er ely a cover up or s m ok e screen to termin ate the Appellant's contr act of employment wh en the real reasons for su ch termina tion were threats , accusation s a nd a llegation s issued by the Executive Director. He placed reliance on the case of Zambia Consolidated Copper Mines Limited v Mata le(3) and implored this Court to go behind the termination of the Appella nt's employm ent. J 7 of 15 Ndhlovu, SC rejoined on behalf of the Respondent that the Appellant's contract was terminated as provided therein and no breach of contract had occurred. It was State Counsel's argument tha t the case of Chilanga Cement Pie v Kasote Singogol 1l was different from this case because in th e S ingogo case the employer used a wrong m ethod to termin ate the employment. He buttressed his argument with the case of Tolani Zulu and Musa Hamwala v Barclays Bank Zambia Limited14 lin which the Supreme Court stated that the exercise of a notice clause is within the powers of an employer. He further cited the cas e of Musonda Lumpa v Maamba Collieries Limitedl5 l in which t h e Supreme Cour tstated that" . .. it made no difference that the employment was terminated because of the alleged use of abusive language .... it is the giving of the notice or pay in lieu that terminates the employment. .. " and with this State Counsel submitted that the lower Cour t had no jurisdiction to go behind and enquire as to wh at m otivated the givin g of the notice, if the s a me was d one within the provisions of the Contract of Employm ent. Lastly in Groun d four, Mr. Mukande contended that the Appellant was lawfully on leave at the time she t ravelled to pursue the cour se in Australia. He accepted that the Appella nt was in formed that Clause 29 of the Respondents J 8 o f 15 Handbook would a pply to her and which clause was to the effect that, wh ere the studies are full time in n ature, an employee will be r elieved of h is duties fo r th e duration of the study without any guarantee of a job when they return. Mr. Mukande however maintain ed that th e Executive Director approved the Appellant's leave a nd could n ot therefore turn round to get recomm endation from a n organ of the Respond ent which h a d no a uthority over the m atter. In his view, the approved 3 0 days leave and the approved 62 days annu a l leave granted were sufficient to cover t h e entire t ra ining progra m. In r eply to ground four Mr. Ndhlovu emphasized that terminating the Appella nts contract whilst she was on leave was not a breach of contract and that the Responden t had done n othing that amounted to a breach of contract so as to entitle the Appellant to damages. We h ave carefully considered the Record of Appeal, the lower Court's Judgment and th e s pirited arguments by both State Counsels. The record s hows that n eith er Party dis putes the fact that the Appellants employment was terminated by way of Notice pursuant to Article 11.2 of the Appellant's Contract. We therefore accept State Counsel's argument that the Court erred to refer to the termination a s unfair dismissa l which was n ot even plead ed. The said Article 11. 2 reads as follows: J 9 of 15 " this agreement can be terminated by either party giving three months notice or payment of three months salary in lieu of notice, provided that where an employee so terminates the contract the employer shall not be liable to repatriate the employee" As we s ee it, th e main issu e for d e termination in this m atter is wheth er the termina tion wa s inordina te a nd motivated by ill will and t h er efore wron gful. The learn ed State Counsel Mr. Mukande, relying on th e ca s e of Chilanga Cement Pie v Kasote Singogol 1l urged this Court to d elve into the m atter a n d ascerta in the real rea son behind the termination b eca u se in his view, the tr ia l Court h a d failed to appreciate the eviden ce of ba d faith exhibited by th e Executive Director. His view was premised on the fact th at s h e was dis missed during the period she was on leave and which leave wa s a uthorized by the Execu tive Director of th e Re spondent organisation. Mr. Ndhlovu SC, took a cont r ary view a nd a r gued th at the case of Chilanga Cement v Kasote Singogo 1s ina pplicable m this cas e becau se m J 10 of 15 that particular case, they used the wrong method to terminate the employee's contract of employment which is not what happened in casu. Learned cou nsel for the Appellant, called upon th is Court to consider the provisions of Section 85(5) of the Industrial and Labour Relations Act, which reads as follows: 85.(1) The Court shall have original and exclusivejurisdiction to hear and determine any industrial relation matters and any proceedings under this Act. (5) The Court shall not be bound by the rules of evidence in civil or criminal proceedings, but the main object of the Court shall be to do substantial justice between the parties before it. The above Section was interpreted by the Supreme Court in the case of Zambia Consolidated Copper Mines Limited v James Matalel6 l in which it stated as follows: " ... The mandate in subsection 5 which required that substantial justice be done does not in any way suggest that the Industrial Relations Court should fetter itself with any technicalities or rules. In the process of doing substantial J 11 of 15 justice, there is nothing in the Act to stop the Industrial relations Court from delving behind or into reasons given for termination in order to redress any real injustices discovered; such as the termination on notice or payment in lieu of pensionable employment in a parastatal on a supervisor's whim without any rational reason at all, as in this case ... " In a m ore r ecent case, Redrilza Limited v Abuid Nkazi and Othersl7 l, th e Suprem e Court h ad this to say; "We must hasten to point out, that while the Industrial Relations Court is empowered to pierce the veil, this must be exercised judiciously and in specific cases, where it is apparent that the employer is invoking the termination clause out of malice. Looking at the facts of this case, we do not find any evidence of malice on the part of the appellants ... " .... In our view, the fact that the termination clause in the contract was invoked after the settlement of the work stoppage issues, cannot bar the appellants from exercising their right to terminate under the contract. This also cannot justify the Industrial Relations Court to 'pierce the veil'. In Zulu and Another v Barclays Bank Zambia Limited (4), where the appellants were actually on suspension, before termination of their employment we said that: J 12 of 15 'The respondent had a number of options open to them: they could have had the appellants prosecuted; put on disciplinary charges or opt to give them notice required under the conditions of service or pay the amount in cash in lieu of notice. The respondent opted for the last option of paying a month's salary in lieu of notice. ' " In this case, the appellant was within its right, to terminate by notice as provided in the contract. If the appellant had terminated outside the contract, our views would have been different .. . " It is ther efore clear tha t the Court s hould only 'pier ce the veil' where there is evidence of m a lice on the p a rt of the employer. In cas u, th e Ap pellant alluded to the hostile r elations hip between h erself on th e one h a nd a nd the Executive Director and the Cha ir m a n of the Board on th e other hand a s well as th e fac t tha t she was legitim a tely on leave a pproved by the Executive Director. We h ave con s idered the circumsta n ces under which the Appellan t proceeded on leave a nd observe tha t the Executive Director initially supported h er a pplication to pr oceed for the course 1 . However, t h e Appellant was later informed by the Executive Director , in writing, tha t d espite h aving supp orted 1 Record of Appeal, p ages 33 and 35 . J her a pplication, in view of the fact that her training would la st m ore than four J 13 of 15 week s, she should be mindful of her conditions of service and particularly Cla uses 29.1.2 to 29.1.8. 2 The Executive Director wrote another letter to the Appellant a dvising her tha t the organizations Executive Boa rd h a d recommended that the Executive Director not a pprove the Appellants application for study leave. She informed the Appellant th at on the basis of that recommendation, h er a pplication for leave beyond 30 d ays had been declined3 . The Appellant, app ealed to the Board Chairperson4Who informed her that the Board was in full support of the Executive Directors decision5 . The Appellant, however , persisted and a ppealed to the Executive Director yet again, who informed h er that t he Respondent orga nisation was not a pproving h er p a rticipation in the course a nd th at h er study leave h ad n ot been approved but added the following, "However, you are entit led t o your Annual leave which I am reluctantly approving for a maximum of 60 days as stated in your Appeal. Reluctantly because I would not unde r normal 2 Record of Appeal, p. 36, letter from the Respondent to the Appellant dated 18'11 July, 2013 3 Record of Appeal, p. 37, letter from the Respondent to the Appellant dated 13th August, 2013 4 Record of Appeal, p. 38, letter from the Appellant to the Respondent dated 13'11 August, 2013 s Record of Appeal, p . 42, email from the Respondent to the Appellant dated 1911• August, 2013 . l circumstances approve leave of 60 days for a person m your capacity and J 14 of 15 responsibility"6. Notwithstanding the Executive Directors initial support for the Appella nt to atte nd the cou rse , it is quite clear from the foregoin g and the Responde n t la ter informed the Appella n t, m no uncerta in terms, tha t the application for study leave had been denied. The Respondent explained to the Appellant why the organization found it undesirable for her to proceed for the course, inter alia, that s h e had assumed the office of Director of Human Resources only seven months earlier7 . Quite contrary to t h e Appellant's submission, the r ecord shows th at the duration of the cou rse the Appellant wis h ed to unde rtake was from 26th August to 19th Nove mber, a total of 84 days, excluding travel t ime. Her application for 30 days study leave having been de n ied, the Respondent was left with only 6 0 day s annual leave which was insufficient to cover the duration of the course . We yet again r efer to the h olding in Redrilza Limited v Abuid Nkazi and Others17lth a t it must be shown that the termination clause was invoked out of 6 Record of Appeal, p. 45, letter from the Respondent to the Appellant dated 21 s 1August, 2013 7 Record of Appeal, p. 37, letter from the Respondent to the Appellant dated 13th August, 2013 . , malice. The trial Court found as a fact that ther e was no malice and we see no J 15 of 15 misapprehension of the facts in that regard. What we quite clearly see on the other hand, is an intransigent officer who decided to proceed on a course which her employers clearly did not support and whose duration exceeded the leave days available to her. We see no malice on the part of the employer and therefore no need to "pierce the veil" and we consequently find that the termination by notice was within the employer's power in accordance with the contract of Employment. This Appeal is consequently dismissed. We make no Order as to Costs. Dated this day of 19th September, 201 7 C. K. MAKUNGU COURT OF APPEAL JUDGE J HASHI COURT OF APPEAL JUDGE .......................................... L M. M. KONDOLO SC ::::-:, - COURT OF APPEAL JUDGE