First Quantum Mining and Operations Limited v Yendamoh (Appeal 206 of 2015) [2018] ZMSC 300 (15 August 2018)

IN THE SUPREME COURT FOR LUSAKA APPEAL NO. 206/20 15 J1 HOLDEN AT KABWE CIVIL JURISDICTION BETWEEN: AND OBBY YENDAMOH SCZ/8/307/2015 APPELLANT RESPONDENT Coram Wood, Kabuka and Mutuna, JJS On 7 th August 2018 and 15th August 2018 For the Appellant N/A For the Respondent IN PERSON JUDGMENT Mutuna, JS. delivered the judgment of the Court. Cases referred to: 1) Attorney-Genera l v Richard J a ckson Phiri (1988/89) Z. R. 121 , 2) Zambia Eleptricity Supply, Corporation , Limited v Lµbasi Muyambango (2006) ZR 22 3 ) Caroline Tomaida h Daka v Zambia National Commercial Bank Limited Pie (High Court Judgment of.31•' December, ~012) t I I 4) Dennis Chansa v Barclays Bank SCZ/8/128/2011 ·, •• ·, '• '• ·, •• J2 5) Kafue District Council v James Chipulu SCZ J udgment No. 51 of 6) Chilanga Cement v Kasote Singogo (2009) ZR 122 7) Browne v Dunn (1893) 6 R 67 fHL) 8) United States v Salermo 48 1 US 739 9) Tolani Zulu and Musa Hamwala v Barclays SCZ j udgment No. 17 of 10) Fart inol Nkandu v Cargo Management Services Limited Appeal No. 139 of 2009 11) Chintu Kanga (Suing as administrator of the estate of Godfrey Locha) v Zambia Revenue Authority Appeal No. 194 of 2015 12) Dennis Chansa v Barclays Bank of Zambia Pie Statute referred to: 1) Industrial and Labour Relations Act, Cap 269 Other authorities referred to: 1) Chitty on Contracts - volume 1, 29th edition by H. G. Beale, QC, general editor, London, Sweet and Maxwell 2) Black's Law· Dictionary, 9th ·edition by Bryan A. Garner, Thomson West USA Introdu c tion 1) , The relatioqship of employer and employee 1s governed by terms and conditions of service which often times contain a disciplinary code .·, This disciplinary code contains the various offences ·, ·, ', ·, I J3 which an employee is likely to com1nit and the penalties for such offences. 2) The question that arises from the foregoing is the level at which an employer is permitted by the law to invoke the provisions of the disciplinary code. That is to say, is an employer, like a n automaton, permitted to invoke the provisions of the disciplinary code to the letter whenever an employee appears to have committed an offence without having regard to mitigating factors . 3) This is the question which is posed by this appeal which arises from 'a decision o(the Industrial and Labour Division of the High Court (erstwhile Industrial Relations Court) by which the Respondent's claim for unlawful and unfair dismissal was upheld. ~ ~ '• •• ·, ·, ·, ·, ·, J4 4) The appea l also discusses the exte nt to which a n e mployer is compelled to a bide by th e rules of natura l justice whe n invoking the power to termina te a n employee's e mployment. Background 5) The fac ts of this case a re that the Responde nt was employed by the Appellant in November 2006 as a Spotter 1n Solwezi. In the course of his e mployment he rose to the rank of Person In Charge {PIC). 6) On 17th April 2014, the Respondent was in"'.olved . . in a road traffic accident along the Solwezi Chingola road which resulted in injury to a , pedestrian. As a result of• this, the pedestrian was • taken to Chingola Hospital while the Responden t was ·,deta ined at c·hingola Police Station. ·, •• ·, ·, ·, ·, JS 7) On the night of 171h April 2014, the Respondent made frantic attempts to contact his superiors to inform them of his predicament and seek leave of absence. Later he was informed by the person who stood in for him as PIC to send the Police Bond Report to the Appellant for purposes of facilitating an application for leave. No formal communication was made to him in respect of the application. 8) Subsequently, on 20th April 2014, the Respondent was released from custody and directed by the Police to make frequent checks· on the pedestrian and settle his medical bills, who at this stage had been transferred to Ndola Central Hospital. 9) In compliance with the directive from the Police he ·, ·, continued to check on the pedestrian and settle '1 I I I his bills. In doing so, he spent nights at the ·, . ' ·, ·, J hospital at Ndola, on the insistence of the pedestria n's r elatives, wh ile th e p edestria n 's spouse spe nt days with him. 10) During this episod e, he continued to inform his superiors of the position he was 1n. This notwithstanding, on 8th May, 2014 the Appellant terminated the Respondent's employment on grounds of desertion. 11) The Respondent appealed against the termination of employment and was requested to atte nd an appeal hearing on l Jth June 2014. After the hearing, the Appellant wrote to the Respondent on . h June 2014, informing him that his appeal had been declined. This did not please the Respondent, prompting him to commence an ·, action against the Appellant in the C9urt be low. ·, 1 . , •• '• ·, '• ·, '• J7 The Re s pondent's claim a nd Appellan t 's d e fence in the Cou rt be low 12) Th e clai m by the Respondent was by way of a notice of complain t pursuan t to section 85(4) of the Industrial a nd Labour Relations Ac t and he sought th e reliefs of d a m ages for un la wfu l dismissal, reinstateme n t a nd any other relief the Court d eemed fit. 13) The basis upon which the Respondent m a de the claim was that the Appellant had u n la wfully and unfairly dismissed h im from emp loyment. 14) The Appellant denied the c laim and contended that the termination of the Responden t's e mployment was by way of summary dism issal I t I t on a ccount of gross miscond uct. Accor ding, to the ·, Appellan t ,., the Respon dent had a bsconded from , . . •• •• ·, ·, •• )8 work without official leave for a pe riod of more than five days . 15) The Appellant explained that a lthough the Respondent had furnish ed it with a police bond confirming his arrest and detention, the Respond ent did not explain the conditions of such police bond. It contended further that the Appellant followed its disciplinary procedure prior to terminating the Responde nt's employment in that he was allowed to appeal following which, an appeal hearing was held which resolved to dismiss the Respondent. The evidence presented by the parties in the Court below ' 16) The parties presented their evidence by way of affidavits in support and opposition to the notice ·. .. ' ., ·, ·, ·, ·, J9 of complaint and viva voce e vidence a t the hearing. 17) The Respondent's evide nce set out the events leading up to his arrest and detention by the Chingola Police a nd the subsequent stay at Ndola Central Hospital attending to the pedestrian. 18) The crucial evidence was in the viva voce evidence stating the efforts the Respondent made after his a rrest to contact his superiors . The evidence also revealed that as per lbe discussion h e had with one of his superiors, he h a d sent a copy of his police bond to prove the· arrest effected upon him. Further, it set out the change 1n his circumstances when he was directed by the police to be by the pedestrian's bedside and his attempt ·, at this stage to a pply for leave. I I ', '• '• '• ·, ·, ·, ·, JlO 19) Likewise, the e viden ce, both affidavit and vzva voce, led by the Appellan t was in line with the undisputed facts of this case. The testimony of RWl, one Michael Ngoma , the Respondent's supervisor confirmed that h e received a copy of the Police Bond from the Respondent and that he applied for leave on behalf of the Respondent based on the Police Bond but it was denied. 20} The evidence also revealed that 1n its determination of the Respondent's case, the appeal committee considered the warning which the · Appellant had given the · Respondent · in an earlier incident of absenteeism . Consideration and decision by the Court below • • 21) The Court below began its determination of the ·, matter by se tting out the undisputed facts' which ·, are, by and large, in line with the undis. Puted •, ' 1 • , I Jll facts we have set out 1n the earlier part of this judgment s a ve for two other findings . Thes e were that: the disciplinary action against the Respondent was not preceded by a disciplinary hearing by a disciplinary committee; and the Appellant's disciplinary code does not have provision for consideration of the reasons for an employee's absence or efforts made by such an employee to fill in leave forms . 22) The Court below then fra111ed lhe issue for determination as being whether or not the Res'pondent was unlawfuily and unfairly dismissed? In respect of the consideration of unlawful dismissal, the Court stated that 1n considering the issue, it must look at the ·, ·, form of the dismissal vis a vis the disciplinary '1 't I . , ·, procedure. It referred to our decisions in the cases ·, ·, .. ·, Jl2 of Attorney General v Richard Jackson Phiril and Zambia Electricity Supply Corporation L imited v Lubasi Muyambango2 where \. Ve held that in considering the issue of unfair dismissal the Court should not act as an appellate tribunal from the decision of the disciplinary committee. That the duty of a Court is limited to determining whether there was necessary power to act by the disciplinary committee and if such power was exercised properly. 23) The Court concluded by setting out the questions a ·court should ask itseif in making the determination. 24) Turning its attention to what constitutes unfair dismissal, the Court relied on is finding in the ·, ·, case of Caroline Tomaidah Daka v Zambia ·, ·, ·, National Commercial Bank3 where it observed ·, ·, ·, ·, )13 that unfair dismissal arises from statutory provisions and involves the protection of the right to employment and advancement of fair labour practices. This entails the requirement of the employer to terminate the contract of employment only on specified grounds and provision of the rare remedy of reinstatement. 25) To this end, the Court found that in considering whether or not there was unfair dismissal, it must determine the merits and demerits of the dismissal. That is to say, are the reasons given for the· dismiss just? The Court explained further that contracts of employment should only be terminated if reasons exist for doing so based on the conduct, capacity of the worker or ope rational ·, ·, requirements of.the business. I I I ·, ·, . ' ·, ·, ·, J14 26) After expla ining t he legal position as we have set out 1n the preceding paragra phs, the Court considered the evidence a nd found that the termination of the Respondent's employment by way of summary dismissal was not only wron gful but unfair. It based its finding on the fact that the tenets of natu ral justice were contravened as follows: 26.1 The summary dismissal resulted in the neglect by t he Appellant to fulfill conditions precedent to the dismissal being: the charging of the Respondent; giving him an opportunity to exculpate himself; and an opportunity to be heard by the disciplinary committee; 26.2 Although the offence the Respondent was charged with prescribes a penalty of summary dismissal in accordance with clause 1 of the Disciplinary Code, the Respondent's absence from work resulted from events which were , beyond his control, which the •Appellant's management was aware of. As such, the rules of national justice required that he should have been given an opportunity to explain the circum11tances that he ·,found himself in. The Court stated further t hat the Appellant's manageme nt knew where the Respondent was and that '• ·, •• •• ' . JlS he could not comple te the leave forms which were in S olwezi whilst he was a t Chingola p olice station. 26.3 The conduct of the App ellant's management, as revealed by the evidence of RWl was suspicious and s hows that it h ad made up its mind to dismiss the Respondent. The Court formed this opinion from RW l 's evidence which was that when he approach ed his immediate supervisor to apply for leave for the Respondent, t h e supervisor declined t he application on the ground that the Respondent was in the habit of absconding from w o rk. 27) Having found that the Respondent's dismissal was wrongful and unfair, the Court conside red the remedy to award the Respondent and declined to order reinstatement in view of the hostility which the Appellant's management had displayed towards the Respondent. In its place, the Court a,va rded the Respondent the following: twenty four months' salary as damages for wrongful dismissal; and twelve months' salary as ·, compensp.tion for unfp.ir dismissal., The basis of •• the award was our decisions 1n the cases of '. •• ·, ', J1 6 Dennis Chansa v B arclays B a nk4, Kafue District Council v James Chipulus and Chilanga Cement v Kasote S ingogo6 whose awards we have discussed in the latter part of this judgment. 28) The Court also awarded the Respondent interest on these monetary awards at the short term commercial bank rate from the 16th October, 2014 to the date of judgment, thereafter, at the current lending rate as dete rmined by Bank of Zambia. Grounds of appeal t o t his Court and arguments by the parties 29) The Appellant is, aggrieved b)II the decision• of the Court below and has launched this appeal on six ·, grounds hs follows: ·, ·, ·, ·, ·, ·, ·, Jl7 29.1 The Court below erred at law and in fact by failing to c onsider t he provisions of App ellan t 's disciplinary code in relation to the penalty for being away from work wit h o ut leave; 29 .2 T he Court b e low misdirected itself in failing t o make a finding that the respondent had not been granted leave to be away from the office; 29.3 The Co urt belo w e rred in law and in fac t when it held t hat the Responde nt's termination o f e mployment by way o f summary dismissal was both wr ongful and unfair on the ground that the tenets of natu ral justice were contravened; 29. 4 The Court b e low erred at law and in fact whe n it h e ld t h e rules of n a t ural justice a re applicable in all that cases; 29.5 The Co u rt b elow m isdirected itself b y h olding that t he rules of natural jus tice were bre ache d by n o t holding a hea ring wh en in fact the Respondent had been a ccorded . . a n ade quate h earing a t a ppeal s tage; 29.6 The Court below mis directed itself by failing to take i nto accou nt that b y n ot abid ing by t h e p r o cedure for obta in ing leave from his employer and in stead followed , the dire ctive of the p olice wh icH h ad no legal b adking the Respond e nt a ssumed the risk o f being dismiss ed from e m p loym ent. ·, '' ·, •• '• ·, '• •• J18 30) The Appellant argued grounds 1 and 2 of the appeal together and these were that the relationship bet\veen the parties was governed by terms and conditions of employ1nent which contained a disciplinary code of conduct. It was an express term of the contract that prior to going on leave the Respondent was required to formally apply for, and obtain leave. 31) According to the Appellant, the evidence on record reveals that the Respondent did not apply for leave prior to going on leave and, as such, the Appellant was entitled to invoke the provisions of the disciplinary code which prescribed dismissal for such an infraction. Further, the parties were both bound by the provisions of the disciplinary code, therefore, the Court could not invoke rules · , · , ·, · , .. of natural justice 1n place of the procedure •• •• ·, •• •• J19 provided for 1n the disciplinary code . The Appellant drew our a tte ntion to the case of Maclean v The Workers Union7 1n which Marghan J held at page 623 that where a contract between the parties sets out procedural rules governing them, the Court cannot invoke the rules of n atural justice as a substitute to the terms of the con tract. 32) The Appella nt also referred to section 36( l )(c) of the Employment Act which states inter alia as follows : "36(1) A Written Contract of Service shall be terminated - a) ... b) ... c) In any other manner in which a contract of service • to be • terminated or deemed • may be lawfully • ·, '• terminated whether under the provisions of this Act or otherwise." Here, the Appellant's contention was that the Court below misdirected itself when it fou·nd that ·, '• )20 the termination was wrongful and unfair despite the Respondent's employment being terminated in accordance with the agreement of the parties . 33) In addition , the Appellant argued that the unchallenged evidence of RW3 revealed that the Respondent did not request him to apply for leave of his behalf. There was no attempt on the part of the Respondent to discredit this evidence by way of cross examination as such, the Court was at liberty to regard the said evide nce as undisputed. We were referred to the cases of Browne v Dunn7 in regard to this latter submission and United States v Saler mo8 where Steve n J stated the purpose of cross examination • as being to • undermine the opponent's evidence. 34) The Appellant, conclu ded acgume nts on, the two ground s of appeal by defining a contract in the ·, ·, ·, '• ·, ·, •• J21 context that it gives nse to obligations by the parties vvhich are e n forceable. Regard was ha d to the definition of the word in Ch itty on Contracts General Principles and Black's Law Diction ary. 35) Turning to grounds 3 and 5 of the appeal, the argument by the Appellant was simply this, that there was n o breach of the ru les of natural justice by it 1n effecting the Respondent's dismissal because he was given an opportunity to be heard . This is clear from the evidence on record which reveals that after the Respondent was served with the dismissal letter he was invited to a hearing of the appeals committee. That in affording the Respondent th e said hearin g the Appellant acted 1n conformity with ·, our decision in the case of Tolani Zulu and Musa ·, ·, ·, ·, ·, ·, J22 Hamwala v Barclays Bank Limited9 where we set out the provisions of section 26A of the Employment Ac t and Article of the International Labour Organisation \vhich state the need for an employer to give an e mployee opportu nity to be heard prior to terminating this employment on the grounds of conduct. 36) Under ground 4 of the appeal, the Appellan t ar gued in the alternative that even assuming that it omitted to a pply the rules of natural justice, it was on firm ground 1n terminating the Respondent's e mployment because he committ'ed a dismissible offence. The Appellant relied on our decision in the case of Fartinol Nkandu v Cargo Manageme nt Services L imitedlO in which we reaffirmed an earlier decision ~ ~ that where an employee has committed an offence fo r which he ·, ·, ', ·, ·, J23 can be dismissed , no injustice arises from failure by the employer to comply with the agreed procedure for dismissal a nd such an employee has no claim on that ground for wrongful dis missal or a declaration that the dismissal is a nullity. 37) The arguments concluded by setting out authorities which state that an employee may be summarily dismissed if he willfully disobeys any lawful and reasonable order of the employer. We have not reproduced the said arguments beca use of the reasons which are a pparent in the portion of this judgment which deals with ground 4 of the a ppeal. 38) Coming to ground 6 of the appeal, which was the last ground of appeal, the Appellant essentially ~ ~ ~ ~ ~ reviewed the evidence led in the Court below as it ·, ·, ·, ·, ·, J24 related to the directive given to the Respondent to attend to the pedestrian and the findings of fact made by the Court as a consequence thereof. It concluded by attacking the findings of fact on the ground that they were not made on a proper review of the facts and were such that on a proper review of the evidence, no trial Court could make. 39) In response, the Respondent in his heads of argument did not make any legal arguments but merely recounted and reviewed the facts of this case. This is understandable as he is lay and opted to represent · himself. We have riot reproduced the contents of his h eads of argument because the facts of this case are 1n any event, by and large, not in dispute. 40) · , • • At the h earing, in · his viva voce arguments, the · , '1 Respondent requested us to expunge the •• •• •• •• J2S supplementary heads of a rgument filed by the Ap pellant from the record as they introduced legal issues that were not before the High Court. Consideration by this Court and decision 41) In our consideration of this appeal, we have only dealt with grounds 1, 2 , 3 and 5 of the appeal. We have not dealt with the m erits and demerits of grounds 4 and 6 of the appeal because the issue under the forme r was not a rgued in the Court below, whilst the issue under the latter qu estion findings of fac t, which cannot be the subject of . . a ppeal in view of the Division from which the appeal eman ated. 42) We also hasteJJ to add that, at the hearimg of the appeal the Appellant was not represented by ·, counsel who opted to file a · notice of rion ·, attendance in accordance with our rules. We we.re ·, ', ·, ' • • t J26 therefore, not able to ascertain from counsel whether or not the Appellant had filed supplementary heads of argument referred to by the Respondent in his viva voce a rguments. Our efforts to locate these supplementary heads of argument on the record drew a blank. We have thus not referred to them in our determination of the appeal. 43) For purposes of clarity, the arguments advanced by the Appellant under ground 4 are that even assuming the Appellant did breach the rules of natural justice, it was justified in dismissing the Respondent because the offence he committed was in any event a dismissible one . We are of the firm view that this argument is at odds with th e argument and evidence led in the Court below ·, ·, ·, ·, which was that the Appellant complied with the •• •• •• •• . . ·, •• . . . )27 rules of natural justice because it gave the Respondent an opportunity to be heard 1n effecting his dismissal by way of the hearing on appeal. The Appellant did not a dvance the alternative argument being canvassed now. 44) In relation to ground 6 of the appeal, we have said in a plethora of authorities, most recently in our decision in the case of Chintu Kanga (s uing a s administrator of the estate of Godfrey Locha) v Z ambia Revenue Authority 1 2 , that an appeal to this Court from the Industrial and Labour Division of the High Court can not be entertained where it only questions findings of fact. This arises from the provisions of s ection 97 of the Indus t rial a nd L a bour Rela tions Ac t which only a llows appeals on points of law or any '1 I '1 ·, ·, point of mixed law and fact. ·, ·, ·, ·, ·, ·, . ' ' J28 45) This brings us to grounds 1, 2 , 3 and 5 of the a ppeal. Th ese grounds ra ise two issu es namely: whether or not the Appe llant ought to have followed the rules of natura l ju s tice prior to dismissing the Respondent; a nd whether or not the Court below misdirected itself when it found that the Appellant ought to h a ve conside red the reasons for t he Respondent's a bsence from work, despite the mandatory sanction prescribed in the Disciplinary code of summary dismissal, for first breach. 46) We must state from the outset that we agree with the findings by the Court below that wrongful dismissal addresses the procedure adopted in effecting the dismissal whilst unfair dismissal ·, •• addresses t~e genu1ness or othe rwise for the ., dismissa l. We also a gree th at 1n dealing with '• •• '. ·, . . . )29 wrongful dismissal a Court should not act a s an a ppellate tribunal, but r a the r examine if the procedure prior to dismissa l wa s correct a nd if the constitution of the disciplinary committee was 1n accordance with th e disciplinary code. 47) Turning to the first issue on compliance with the rules of natural justice, the Appellant has contended that it complied with the rules because it afforded the Respondent an opportunity to be heard at the appeal stage. 48) The findings by the Court be low were that the evidence on · record revealed that the· letter of dismissal "blocked" the adherence by the Appellant to the rules of natural justice. We agree with this finding becau se the evidence reveals that the Respondent was not charged prior to his ·, ·, ·, dismissal and neithe r was he invited to exculpate •• '• .. •• ·, '• . . ' J30 himself or appear before a disciplinary committee . These are the basic tenets of natural justice which the Appellant failed to comply with . 49) It was not enou gh for the Appe lla nt to merely afford the Respondent an opportunity to be heard only at the appeal stage . We, therefore, hold that the Court below was on fi rm ground when it found that the dismissal was wrongful especially that, and as argued by the Appellant, an employee is entitle d to be heard prior to his dismissal based on conduct pursuant to section 26A of the Employment Ac t (as amended 1997)'. 50) Coming to the second issue which deals with the finding by the Court that the Appella n t should ha ve considered the reasons for the Respondent's a bsence fro1n work. The starting point here is to ·, · , .• t recognize the fact that the disciplinary code •• •• •• ·, '• •• . . . . J31 prescribes the mandatory penalty of summary dismissal for the offence for which the Respondent was dismissed . The Appellant has, in this regard , argued that the provisions of the code being the terms and conditions upon which the Respondent's contract of e mployment was anchored are binding on him and should be e nforced to the letter. 51) We would like to begin by revisiting the reasoning by the Court below after it considered the evidence. The relevant portion is at page 27 of the record of appeal and it is the one rium bered (iii)" and (iv) which states in part as follows : "While it is a ppreciated that t h e offence of 'Absent 'Witho ut Official' Leave (AWOLI fo'r 5 days or m ore, under Clause 1 of the (Appellant's) disciplinary Code, carries a p e n alty of summary Dismissal, the Respondent's absence ·, from 'lio-ork for m ore t hiln 5 days was b e yond his control°: and the Appellant's management knew t his fact w hic h '• '• ., ', . , •• . . . . J32 should have warranted the rules of natural justice to be invoked .. . The Appellant's top management's conduct in t h is matter is quite s uspicious and raises eye brows and a lot of questions, in that all the effort the (Respondent] made to inform the (Appellant] about his predicament /whereabouts, and efforts he made to have his official leave granted was not considered and was totally ignored. It shows they already had a fixed state of mind about the [Respondent] and granting him no room to be heard." 52) The foregoing was the basis upon which the Respondent was found to have been unfairly dismissed as the Court below did not accept as genuine the reason advanced fo r the dismissal. 53) . We agree enti rely with the reasoning of the Court. below because although as Courts we are bound to enforce the terms and conditions of a contract between parties, ' we can only do so whe'n the person seeking to enforce the terms is acting ·, reasonably and the said actions are supported by ·, ·, ·, •• ·, relevant evidence. In -this case as. the Court·· . , . . below correctly observed, the evidence reveals that the Respondent found himself 1n a hopeless situation which h e sought to remedy by immediately informing his employer and seek official leave . Despite this, the Appellant unreasonably declined to grant the leave and in so doing created a situation that would put the Respondent squarely within the realms of clause 1 of the disciplina ry code. We say the Appellant created this situation because by definition ·~ WOL" is absent without leave; or missing without n·otice or pe rmission (see Black's Law· Dictionary). The latte r part of the definition denotes that if notice is given for ones absence, as wa s given by the Respondent to the Appellant, one is not AWOL. ·, ·, ·, ·, ·, ·, ·, ·, ·, ·, • , t • J34 54) To the extent, therefore, that the reason given for the dismissal was not genuine, the Court be low did not misdirect itself when it found that the Respondent was unfairly dismissed. 55) Consequently, this a ppeal lacks merit 1n respect of the findings under wrongful and unfair dismissal. The matters however, do not e nd there because, the Court below went on to award two remedies, that is twe nty fou r months' damages for wrongful dismissal and twelve months' salary o.s compensation for unfair dismissal. 56) The position we have taken is · that the two ·awa rds we re wrong in principle because they arise out of one compensatory event, which is the loss of employment. In granting the two awards the ·, ·, .. Cou rt below justified them with the fact that re ·, instatement was inappropriate a nd that there 1s ·, '• ·, •• ·, ·, . •' ,' \ scarcity of jobs on the labour market. The Court relied on a number of our decisions to justify the awards. 57) The first of such decision was Dennis Chansa v Barclays Bank of Zambia Plc 13 in which we u pheld an award of thirty six months salary as damages on the ground that with passage of time our awards must increase because the global economies deteriorate the chances of finding employment . 58) There is a clear distinction between the principle applied in the award by the . Court below, which we upheld, in the Dennis Chansa case and the one in this case by the Court below in that in the form e r , the thirty six month salary award was a s ingle award for a s ingle or one compensatory' event. In essence, the fact that a single compensatory e;vent had beeJ;J. proved by two facts ·, i.e. wrongful dismissal and unfair dismissal does •• not·.rnean two remedies should, be awarded. ·, ', • • 1 • J36 59) What we have said in the preceding paragraph must be distinguished from what we said in the K afue Distric t Council v Chipulu case which is the second decision the Court be low relied upon. In that case we upheld the decision of the lower Court awarding various monetary amounts as damages. These were, inter alia, for inconvenience and m ental torture arising out of the appellant's failure to recruit the Respondent. These were proper awards because they were given in respect of the various damages proved to have been suffered by the Respondent. To this extent, the case is distinguishable from this appeal. Likewise , the decision 1n the Singogo case is also distinguishable because we only upheld one award of twenty four month salary as damages and struck down the award of six months pay for mental torture. 60) In the ordinar;, course of things we would have been compelled to strike down the two a wards by the Court below. We have not done so because, ', '1 '1 ·, the quantum of damages i.e. thirty six months is ·, 1n conformity with our decision 1n the case of ·, ·, ', ' J37 Dennis Chansa v Barclays Bank of Za mbia Plc where we expressed the need for awards to increase because the scarcity of employment 1s higher by the day on account of deterioration of the global economy. Conclusion 61) We accordingly find no merit whatsoever in the app eal and dismiss it with costs. T he same are to be taxed in default of agreement. I A. M.:--'\\1~11) SUPREME COURT JUDGE ------ r ........................................................ J . K. KABUKA SUPREME COURT JUDGE ·, •• . . . . . . . . . . . . . . . . . . . . . . . . . . . ............................ . N-: K. U'!JINA ·, s '• REME C ip'RT JUDGE -· ·, '• ·, ·,