Tyson Mukisi v Indeco Estate Development Company Limited (APPEAL NO 161 OF 2004) [2006] ZMSC 50 (6 July 2006)

IN THE SUPREME COURT Of ZAMBIA HOLDEN AT LUSAKA APPEAL NO 161 OF 2004 (CIVIL JURISDICTION} BETWEEN TYSON MUKISI Appellant And INDECO ESTATE DEVELOPMENT COMP ANY LIMITED Resp_ondent Coram: Chirwa, Chitegi and Mushabati JJS on 6th July, 2006. For the Appellant: Mr E B Mwansa~ EBM Chambers for the Respondent: Mr I C Ngonga of Messrs I. C. Ngonga & Co. Mr Hf Chizu of Messrs I. C. Ngonga & Co. JUDGMENT DK Chirwa, JS delivered the judgment of the Court. This is an appeal by the appellant, TYSON MUKISI, against the decision of the Industrial Relations Court dismissing his claim for wrongful dismissal. The common facts of the case are that the appellant was employed by the respondent in 1978 as a Maintenance Clerk and later promoted to the rank of Cashier. In the course of his employment as a cashier, the respondent observed that the appellant used to cash some non-Company cheques with the respondent, contrary to the company regulations and it was discovered that the appellant was getting cheques from the respondent 1s clients and others and instead of banking the cheques, the appellant used to get cash equivalent from the J2 respondent 1s petty cash and to balance his work, he used the cheques for that purpose. On discovering this practice, the appellant was charged with disciplinary offences of theft and dishonest conduct. The appellant denied both charges and explained his conduct. In addition to the disciplinary charges, the appellant was also reported to the State ~ Police who investigated the matter and later discontinued investigations against the appellant and turned him into a State witness. i' The respondent proceeded with the disciplinary proceedings and the appellant was invited to attend the disciplinary proceedings meetings on l 3th February 1996. The appellant did not attend the meeting. On 131h February 1996 itself, the appellant was written to, asking him why he did not attend the disciplinary proceedings meeting. J • The appellant responded by his letter dated 23rd February 1996 that he did not attend the meeting because:- "a) The management sat and resolted that, they hand over the matter to the State for fair Judgment; b) Having been cleared by the State of same charges, I found it not appropriate to repeat myself as facts were already with your good office. In view of the above, I hope and trust that the management will take a very sound decision in my favour". Following upon this correspondence, the appellant was dismissed from employment on 8th March 1996. Following this decision to dismiss the appellant, the appell(:mt brought the action against the respondent in the J3 Industrial Relations Court claiming damages for unfair and unlawful dismissal. The Industrial Relations Court after hearing the case found that the conduct of the appellant in cashing cheques against the petty cash was dishonest and that he did not conduct the respondent's business with integrity in that he facilitated an individual to steal money from the Kafue District Council through the ericashment of cheques at his office. It dismissed the claim that there was a practice at the respondent 1 s place of work of cashing cheques. The court further found that the appellant was given an opportunity to exculpate himself which he did in writing although he refused to personally defend himself at a disciplinary Committee hearing and dismissed the appellant's action. There are four grounds of appeal. The first is that the lower court misdirected itself in law and fact by holding ,, that the complainant/appellant did not dispute the allegation leveled against him when the complainant/appellant had submitted a written exculpatory letter and oral explanation to the allegations and in law, the respondent was to prove its allegations against the appellant even where the defence collapses. The respondent failed to prove its allegations. In law, a written exculpatory letter is enough defence/dispute. The second ground of appeal was that the lower court misdirected itself in law and fact by holding that there was no practice at the respondent's company to encash cheques with the Company's daily J4 takings since the said practice was not found in the appellant's conditions of service when at law, any such practice cannot be found in the employees' conditions of service and in any case, there was evidence that such practice existed as the seniors e.t.c to the appellant benefited from the same practice. The third ground is that the lower court misdirected itself in law and fact by holding that the complainant/appellant did not conduct the respondent's business with integrity and facilitated the robbing of Kafue District Council by allowing the individuals to cash the cheques without the authority of the drawer when, by law, the appellant was following the practice and authority of his seniors and was not warned to stop the practice by his seniors and his work was always checked by his seniors. And there was no evidence that Kafue District Council/was robbed. The fourth and last ground was that ·the lower court misdirected itself in law and fact by holding that the appellant failed to prove his case on a balance of probabilities that he was wrongfully dismissed since he was given a chance to excu!pate himself and failed to defend his case at the disciplinary hearing by refusing to attend the hearing when in fact there is documentary evidence on record from the respondent's side indicating that the appellant attended the disciplinary hearing and in law, the respondent did not comply with Section 26A of the Employment (Amendment) Act and terminated his services on the charges he was not charged and heard upon. J5 The parties filed detailed written submissions w ith supporting authorities supporting their submissions. We have gone through these sub missions and authorities. We have also carefully considered the evidence, and the judgment of the lower court. This is a straight-forward case and we do not see it necessary to go into details of the arguments advanced in support o f the appeal or in support o f the judg ment of the Court below. In considering the grounds of appeal, we wish to refer to some of the contents of the documents o n record. At page 80 of the record, is the appellant's appeal letter to the Appeals Committee. This letter clearly spells out the appellant's position. In this letter, the appellant admits having been charged with theft and dishonest conduct and that he exculpated him~elf. He also admits that his case, 11 addition to the disciplinary action taken against him, was referred to State Pollce and he was arrested and appeared in Court but the State withdrew the case. r The purpose of withdrawal was that the appellant was turned into State witness and this is clear from the letter from the Police at page 31 of the record. Turning one into a Stat e witness shows or means tha t that person knows something in the transaction but that his crimlnal blemishness ls not absolutely a bsorbed. The facts clearly show, in this case, that although the respondent did not per se lose any money as the cash that the respondent had paid out was replaced w ith an equivalent c heque. the cheques were issued to the respondent not because they were due for any payment, but to e ncash the Bank Managers Cheques which were d ebited to other customers of the Bank such as ZAMTEL and Kafue District J6 Council. This is the unbusiness conduct that the lower Court found not to have been done with integrity in that the appellant facilitated others to defraud ZAMTEL and Kafue District Council. If there was a practice or system of cashing personal cheques, the appellant abused it and went further with outsiders to defraud third parties by cashier cheques drawn on third parties' accounts. With this in mind, the appellant w~s charged for this dishonest conduct. He was given chance to exculpate himself and he did reply to the charges. He, however refused to attend actual disciplinary hearing because l". Je wrongly advised himself to 11have been cleared by the state and therefore could not be tried twice". There is nothing at law against one to be punished for a criminal offence and then to be disciplined at his work place if the offence is connected to his work a t his place of work. This is not a situation of double jeopardy. In sum, our consideration of the facts of the crPse and the law as presented in this case, we hold that the appellant has failed to prove his ground one (1) because he admits having been charged and he •· exculpated himself. So basically he was heard. Hearing does not always mean viva voce hearing. He was afforded an opportunity to be heard and he was heard. About grounds two (2) and three (3). Although there might have been a practice of encashing personal cheques at the respondent's company, the appellant went a step further in that he was not encashing personal cheques but cheques drawn on other people's accounts who did not receive the cash so released by the appellant and such conduct was not Jl discharging the respondent's business with integrity. These grounds also fail. Ground four (4) is in fact the same as ground one but persued differently. We see no merit in it also. Al! in all, there are no merits in all the four grounds of appeal. We note that there was no order_as to costs in the Court below, but we dismiss this appeal with costs in this Court to the respondent to be agreed and in default, to be taxed. DlhiMO JUDGE OF THE SUPREME COURT JUD~ ~OURT ,! C S Mushabati JUDGE OF THE SUPREME COURT