Victor Chimbala Musonda v ZSIC General Insurance Company Limited (Appeal No. 192/2018) [2019] ZMCA 343 (13 November 2019)

IN THE COURT OF APPEAL FOR ZAMBIA Appeal No. 192/2018 HOLDEN AT LUSAKA (Civil Jurisdiction) .. BETWEEN : VICTOR CHIMBALA MUSO AND 1 3 NOV 7019 IL REGISTRY 2 APPELLANT ZSIC GENERAL INSURANCE COMPANY LIMITED RESPONDENT CORAM : Chishimba, Ngulube and S iavwapa, JJA 25t h September, 2019 and 13th Novembe r, 2019 For the Appellants For the Respondent : Messrs Malam bo & Co. : Mr. K. N. Sakala of Messrs Ventus Legal Practition ers JUDGMENT CHISHIMBA, JA, delivered the Judgment of the Court CASES REFERRED TO: 1. Kitwe City Council v. William Nguni (2005) Z. R. 57 2. Nkhata and Others v. The Attorney General (1966] ZR 124 3 . Antonio Ventriglia and Another v. PTA Bank SCZ Judgment No. 13 of 20 10 4. 5. Minister of Home Affairs v. Lee Habasonda (Suing on his own behalf and on behalf of the Southern African Centre for the Constructive Resolution of Disputes SCZ Judgment No. 23 of 2007 Justin Chansa v. Lusaka City Council (2007) ZR 256 6. Attorney General v. Richard J ackson Phiri (1988 / 89] ZR 121 7. Zambia Electricity Supply Corporation Limited v. Muyambango (2006] ZR 22. 8. Undi Phiri v. Ba nk of Zambia SCZ Judgment No. 2 1 of 2007 9. Zambia National Provident Fund v. Chirwa (1 986) ZR 70 10. National Breweries Limited v. Mwenya (2 002) ZR 11 8 11. Tobacco Association of Zambia v. Kayanj e Farming Limited & Others [2018] ZMSC 330 -J2- .. 12. 13. Chilanga Cement Plc v. Venu Kasi to Selected Judgment No. 61 of 2017 Mukansemu Shambweka Nyirenda (Suing as administratrix of the estate of late Elijar Nyirenda) v. Zambia Forestry and Forest Industries the Corporation Limited, Appeal No. 127 of 2013 . Zinka v. The Attorney General ( 1990- 1992) ZR 73 (SC) Chimanga Changa Limited v. Stephen Chipango Ngomber SCZ Judgment No. 5 of 2010 Bwalya v. Attorney Gen eral SCZ Appeal No. 62 of 2012 National Airports Corporation Limited v. Reggie Ephraim Zimba and Savior Konie SCZ Judgment No. 34 of 2000 Chilanga Cement Plc v. Kasote Singogo SCZ Judgmen t No. 13 of 2009 Bank of Zambia v. Martin Simumba SCZ Appeal No. 50 of 2010 First Quantum Mining Operations Limited v. Obby Yendamoh SCZ Appeal Number 2016 of 20 15 Peter Upite Chishika v. First Quantum Mining and Operation CAZ Appeal Number 122 of 20 18 Zambia Telecommunications Company Limited v. Eva Banda CAZ Appeal No. 2 of 2017 Kalumbila Minerals Limited V Bupe Ka bamba CAZ Appeal No. 59 of 2018 14. 15. 16. 17. 18. 19. 20. 21. 22. 23. LEGISLATION AND OTHER WORKS REFERRED TO: 1. W. S. Mwenda. Employment Law: Cases and Materia ls, Revised Edition, UNZA Press, 2011 . 2. Lord Hails ham (Ed) Halsbury's Laws of England 4 th Edition, Butterworth & Co, 1994 INTRODUCTION 1. This is an appeal against the judgm ent of the High Court delivered by Justice E. Mwansa dismissing th e Appellant's claim for damages for wrongful and unlawful dismissal, loss of employment and payment of salaries and other claimed benefits. 2. The appeal addresses the issues of wrongful and unlawful dismissal. -J3- FACTUAL BACKGROUND 3. The facts are as follows; the Appellant, an employee of the Respondent, filed a complaint before the Industrial Relations Division of the High Court for wrongful and unlawfully dismissal from employment. The Appellant specifically claimed the following reliefs; i. Payment of salaries foregone from the date of commencement of disciplinary process in April, 2010 to January 2016 the latter being the date when the Respondent's Appeal Committee handed down its decision upholding the Disciplinary Committee's decision to summarily dismiss the Complainant. The total amount due to the Complainant in this regard is K698, 750. 08 before interest accrued. ii. Leave pay for the same period in the sum of K82, 645. 72 before interest accrued; iii. Commutation of leave days for the same period in the sum of K62, 636. 76 before interest accrued; iv. Portable pension benefits that would have accrued during the same period in the sum of K297, 216. 79 before interest; v. Expenses incurred in respect of criminal proceedings commenced against the Complainant in the sum ofK45, 500.00; vi. Damages for wrongful dismissal; vii. Damages for unlawful; dismissal; viii. Compensation for loss of employment; ix. Damages for mental anguish; x. Interest on all sums found due xi. Costs xii. Any other re lief the Court may deem fit. -J4- 4. Prior to the Complaint, the Appellant had been charged, by the Respondent, with the offence of "misappropriation of company funds" and "negligence resulting in loss of company funds". The charges levelled against the Appellant were pursuant to clause 8. 9.4 and clause 8.13.1 of the Zambia State Insurance Corporation (ZSIC) Group of Companies Disciplinary and Grievance Procedure code . 5 . The particulars of the allegations, 1n the misappropriation charge, being that the Appellant on 23r d June 2009 had received the sum of K3, 170.00 from a client, Mr. Peter Ihman, of Siavonga being premium payment without issuing official receipt or banking the said funds upon return. 6. The allegations in the negligence charge were that the Appellant had authorized payment of a commission in the sum of K2, 6 16 .61 to a sales agent on a direct business account for Kaluli Development Foundation resulting in loss of company funds. 7 . In his exculpation statement, the Appellant denie d the charge. However, h e acknowledged receiving money in the sum of K3, 170.00 in January 2009 from Mr. Peter Ihman, in Siavonga, for -JS- which a receipt was not issued because h e, a t the time, h a d not carried the receipt book. 8. According to the Appellant, h e only discovered in December 2009 that Mr. Henry Hampondela, a sales agent, had not handed over the money for receipting to the underwriters. Upon b eing queried, Mr. Henry Hampondele promised to pay back the money and sent th e Appellant the sum of Kl , 000.00 via xapit, which sum is still h eld by the Respondent's Choma office. 9 . As regards the issue of t he paymen t of commission to Henry Hampondele on the client's accou nt, the Appellant stated that he acted upon the commission statements and information submitted to him by the accountant. 10. A disciplinary h earing was subsequently held on 8 th and 9 th June 2010 . Consequently the disciplinary committee m a de the following findings ; i. On the charge of misappropriation of company funds of K3, 170.00 collectedfrom Mr. Ihman, the committee found that there was no proof of any formal acknowledgement of receipt of the said funds neither was the said money banked. The committee found that the Appellant was in breach of clause 8.9.4 of disciplinary code. -J6- ii. On the charge of negligence, the committee found that the Appellant, contrary to clause 8 . 13.1 of the disciplinary code, approved payment of commission for payment on direct business - Kaluli Development Foundation in favour of Mr. Henry Hampondela. 11. Based upon the disciplinary committee's findings, the Appellant was summarily dismissed and advised of his right to appeal. On 2 1st June 20 10, the Appellant appealed to the appeals committee. 12. In the meantime , criminal proceedings were instituted before the subordinate court against the Appellant and 3 others in connection with the misappropriation of the Respondent's funds. The Appellant was acquitted of the charges in the subordinate court. 13. The appeals committee thereafter sat and absolved the Appellant of the charge of misappropriation of funds. However, the Appellant was found highly negligent by virtue of failure or omission to ensure that all premiums were collected and banked, resulting in loss of company funds. 14. The appeals committee proceeded to uphold the Appellant's summary dismissal of the Appellant. -J7- THE LOWER COURT'S DECISION 15. The court below found as a fact that the Appellant had collected the sum of K3, 170.00 from the Respondent's client which funds were not receipted or banked as per procedure. The court further found that the Appellant had negligently caused commission to be paid to Henry Hampondele on a direct business transaction. 16. Therefore, the lower court found t h e dismissal reasonable in the circumstances. The trial court dismissed all the claims for monies that 'accrued' during the period the Appellant was not working, namely claims for salaries accrued whilst on suspension, as well as the leave pay for the period, commutation of leave days and portable pension benefits that would have accrued during period of suspension up to dismissal. The court, in dismissing the claims relied, on the case of Kitwe City Council v. Nguni r11 where the court held that it is unlawful to award a salary or benefit for a period not worked for. 17. The trial court further rejected the claim for separation benefits for lack of proof. Equally, the claim for expenses incurred in respect of criminal proceedings in the sum of K45, 000.00 was dismissed for remoteness of claim. -J8- 18. In a n uts hell, the court below fou nd that the dismissal was n either wron gful n or u nlawful. THE APPEAL 19. Being wh olly dissatisfied with the decision of th e lower court, t h e Appellant raised the following grounds of appeal; i . The learned trial Judge erred in law and in fact when he failed to consider that the Respondent's Appeals Committee breached the Respondents own procedural rules and the rules of natural justice in the manner in which it purported to uphold the decision of the Disciplinary Committee to summarily dismiss the Appellant from employment. ii. The learned trial Judge fell into grave error when he made findings of fact and law based on his own assumptions on matters that were not led in evidence before him consequently when he arrived at the conclusions that he arrived at in page JB of the Judgment appealed against. iii. The learned trial Judge misdirected himself and therefore fell into grave error when he evaluated the evidence before him in an imbalanced manner and without having due regard to the totality of the evidence before him. iv. The learned trial Judge misdirected himself when he glossed over and failed to pay due regard to all the issues put before him/or determination in the court below. v. The learned trial Judge misdirected himself when he failed to address the question as to whether or not it was competent for the Respondent's Appeals Committee to uphold the Appellant's dismissal based on a charge of negligence for failure to bank -J9- premium when that charge was never the subject of the proceedings of the Disciplinary Committee. vi. The learned trial Judge erred in law and fact when he held that the dismissal of the Appellant was not wrongful or unlawful. vii. The learned trial Judge erred in law and in fact when he failed to properly address his mind to the issue of damages put before h i mfor determination in the Court below. THE ARGUMENTS 20. The Appellant filed h eads of arguments dated 14th December, 2018. Grounds 1 to 4 are argued t ogether. The Appellant contended that the t rial court failed to address the issue of whether the disciplinary process undertaken by the Respondent met the benchmarks set out in the disciplinary and grievance code as well as the rules of n a tural justice. Further, that the court b elow glossed over the issues tha t were before him for det ermination. We were r eferred to a portion of the Judgm ent at p age J 13 and J 14 of the Judgment where th e issue of wheth er or not the Appellant was wrongfully dismissed was a ddressed by the court . 2 1. The Appellant contended that the trial court failed to a ddress the cardinal issue as to whether it was proper for the Appeals -JlO- Committee to proffer and consider a fresh charge against him and to consequently dismiss him on the said charge without affording him an opportunity to be heard. The Appellant proceeded to draw our attention to the Affidavit in Reply to the Respondent's Answer dated 3 rd June, 2016. 22. According to the Appellant, there was sufficient evidence before the trial court showing that he was charged with a fresh charge on appeal and that it was not his duty to bank the monies received. Further, that the trial Judge made assumptions when he found that the Appellant ought to have known that the monies received ought to have been banked. 23. The Appellant reiterated that it was the duty of the agents to bank the received money and not him as Branch Manager. Further, that the Appellant had maintained, throughout the disciplinary hearing, that the premium in issue was handed over to one Henry Hapondela and it was his duty to account for it. This evidence, according to the Appellant , was not t aken into account by the trial court. We were referred to the case of Nkhata and Others v. The Attorney General f2J in which the Supreme Court -Jl 1- discussed instances wh en an appellate cou rt will reverse findings of fact made by the trial court. 24 . The Appellant maintained that the trial court failed to properly evaluate the evidence that was before him. We were referred to the case of Antonio Ventriglia and Another v. PTA Bank f3J where it was h eld th at it is a miscarriage of justice for a trial court to inadequately deal with the evidence that is before it. 25 . The Appellant submits that a court ought to disclose why anoth er party's evidence has been preferred in relation to the other evidence on record. As authority, the case of Justin Chansa v. Lusaka City Council f4 J was cited in support of the argument. According to the Appellant, the trial court did n ot disclose the reasons for ignoring the Respondent's evidence. We were urged to consider that the judgment falls short of what is required as observed in the case of Minister of Home Affairs v. Lee Habasonda (Suing on his own behalf and on behalf of the Southern African Centre for the Constructive Resolution of Disputes f5J) where the Supreme Court stated th at every judgment must reveal a r eview of the evidence, findings of fact and reasoning of the court on the facts. -J 12 - 26. Th e Appellant contended that this 1s a proper case for the appellate court to interfere with the findings of fact made by the lower court. We were urged to reassess the matters in contention, the evidence and the submissions that were before the lower court. 27. Grounds 5 and 6 were argued together. The Appellant contended that the trial court in holding that the Appellant 'knew very well' that the money collected ou ght to have been banked when received effectively interposed itself as an appellate tribunal to review what the Respondent's disciplinary and appeals tribunal had done. In doing so, the court below went against the Supreme Court's guidance in Attorney General v. Richard Jackson Phiri f6J and Zambia Electricity Supply Corporation Limited v. Muyambango f7J. The court held in the said cases that the duty of the court is to examine if there is necessary disciplinary power and if the same was exercised properly. 28. The Appellant contended that the trial court ought to have assessed whether the correct procedure was employed by the Respondent and whether the Appellant had indeed committed an offence. This is the principle established in the cases of Undi Phiri -Jl3- v. Bank of Zambia f8J, Zambia National Provident Fund v. Chirwa f9J and National Breweries Limi ted v. Mwe nya f10J. 29. According to the Appellant, the disciplinary committee as well as the appeals committee ought to have determined whether it was the Appellant or the agent, Henry Hapondela, who should have accounted for the money received and whose duty it was to have banked the said money. Further, that since the two disciplinary bodies did not make a determination on these two issues it was impossible for the court to make a finding that the Appellant was culpable for deliberately failing to bank the said money. 30. The Appellant therefore submited that the lower court's holding that 'if the complainant had been kept in employment for longer than this period, the Respondent might have suffered seriously' is perverse and ought to be set aside by this court. 31. Under ground 7, the Appellant argued that it is trite law that damages are awarded in contract to place the injured party in the position they would have been had the contract been performed. Further, that the trial court overlooked this principle when it refused to award the Appellant damages owing to the fact that he was not working during the period. We were therefore, -Jl4- urged to award the Appellant damages to be assessed where appropriate and to uphold the appeal with costs. 32. The Respondent in its skeleton arguments dated 21 st February, 20 19, submits that this is not a proper case for the appellate court to reverse the lower court's findings of fact. We were ref erred to the case of Tobacco Association of Zambia v . Kayanje Farming Limited & Others r111 wh ere the Supreme Court discussed instances when findings of fact may be disturbed by an appellate court. The Respondent contended that the findings by the court below are not perverse as they were m a de based on the evidence that was a dduced before it. The Respondent proceeded to refer to J8 at page 15 of the r ecord of appeal namely the findings of fact m a d e b y the lower court which were supported b y the evidence on record. As authority, the case of Wilson Masauso Zulu was cited. 33. The Respondent contended that the court below was called upon to determine wh ether the Appellant was dismissed wrongfully or unlawfully. Further, that in making its determinations the court below properly a ddressed its mind to t h e questions raised and m a d e findings of fact. In addition, that the duty of the court, as -Jl5- shown in its judgment, is to o.nly address the relevant issues raised as opposed to commenting on issues that are not pertinent to the issues before it. The Respondent urged the court to dismiss grounds 1 to 4 of the appeal as the decision by the court below was sound. 34. In response to grounds 5 and 6 , the Respondent submits that should the court find that the factual issues raised by the Appellant were not specifically addressed and determined by the lower court, we would have arrived at the same decision that there was no wrongful and unlawful dismissal. This is on the premise that the Appellant failed to discharge its legal and evidential burden to prove that the Respondent wrongfully and unlawfully dismissed the Appellant. We were referred to the case of Chilanga Cement Plc v. Venu Kasito f1 2J where the court discussed the legal and evidential burden of proof that ought to be discharged by a party; that is, on a balance of probabilities in order to succeed in a civil action. 35. With regards to wh at constitutes wrongful and unlawful dismissal we were referred to an extract from the book, Employment Law in Zambia, Revised Edition, 2011 and the -Jl6- cases of Attorney General v. Richard Jackson f6J and Mukansemu Shambweka Nyirenda (Suing as administratrix of the estate of the late Elijar Nyirenda) v. Zambia Forestry and Forest Industries Corporation Limited f13J. In a wrongful dismissal claim, the form rather than the merits of dismissal must be examined and the challenge is on the basis of procedural error. The latter cited case of Mukansemu dealt with unfair dismissal, the means by which a decision is reached, and the actual decision to dismiss, whether the employee acted reasonably. 36. The Respondent contended that the Appellant had a legal and evidential burden to show that the procedure used to dismiss him was wrong and that the Respondent acted unreasonably. Further, that the lower court properly found that there was evidence before it proving that the decision to dismiss the Appellant was justified as there was a substratum of facts established before the Disciplinary and Appeals Committee. 37. It was argued that there was evidence before the lower court that the Appellant received cash from a customer which money was not banked for over 6 months. Further, that there was evidence that the Appellant authorized payment of commission when such -J 17- commission was not due to the agent. We were referred to the record of appeal and particularly exhibit "KRMS" attached to the affidavit at page 123 of the record. 38. The Respondent contended that the Appellant was properly dismissed in accordance with the procedures contained in the Respondent's disciplinary code . Further, that the Respondent did not breach any rules of natural justice in the process. The Respondent referred the court to several portions of the evidence of the witnesses in the lower court to illustrate the above assertions. 39. The Respondent argued that the appeals committee was on firm ground when it made its decision as the same was merely based on evidence that was presented before the disciplinary committee. Further, that the Appellant was accorded an opportunity to address the specific facts on the charges laid by the disciplinary committee. In addition, that the Appellant's basis of assertion that the Respondent did not follow procedure on the fresh charges is misconceived and is not supported by the evidence on record. -J18- 40. It was contended that the Respondent varied the charge of misappropriation of funds within its power to review the charge in line with clause 9 .3.4 of the Respondent's disciplinary code. Further, that through both the disciplinary and appeals committee, the Respondent had the power to discipline the Appellant in line with their powers as per clause 7.2.0 and 9.3.0, respectively, of the disciplinary committee. In addition, that no fresh evidence was adduced at the appeals stage as all facts relied upon had already been established by the disciplinary committee. 41. With regard to the issue that the Respondent has breached the rules of natural justice, it was argued tha t the Appellant had been given an opportunity to exculpate himself in respect of the money he received from a customer. We were referred to the case of Zinka v . The Attorney General r141 where the court discussed the principle of natural justice. 42. The Respondent argued that the Appellant was found culpable of negligence on appeal based on his own admission in the exculpatory statement. The finding was base d on the a ppeals committee's power contained in Clause 9.3 .0. Further , that the -Jl 9- Respondent was 1n full compliance with the rules of natural justice. 43. It was the Respondent's submission that there were facts that were sufficiently established at the disciplinary and appeals hearing to warrant the dismissal of the Appellant. We were referred to the case of The Attorney General v. Richard Jackson Phiri !6l where the court held that the decision to dismiss an employee will only be bad if there are no facts to support the dismissal. 44. With regard to the 'erroneous' authorization of funds , the Respondent contended that the Appellant admitted to being negligent in his exculpatory letter. Further, that the contents of the exculpatory letter were repeated before the disciplinary committee as well as the appeals committee . 45. It was argued that the decision by the lower court in finding that there was no wrongful or unlawful dismissal was base d on sound law and was supported by facts before the court. Further, that the court's role, as guided by the decision in The Attorney General v. Richard Jackson Phiri t6J, is not to ascertain the correctness of the decision by the disciplinary bodies. -J20- 46. Th e Respondent argued that since t he Appellant was properly dismissed, it is immaterial wh ether or not h e suffered loss. Further, tha t as was held in the cas e of Chimanga Changa Limited v. Stephen Chipango Ngomber t15J, a dismissal cannot be wrongful if a relationship anchored on trust is eroded by a party's negligent acts. 4 7. It was contended that the Appellant failed to show that the Respondent recover e d the money that was lost as a r esult of his negligent conduct. Further, that h avin g acknowledged receipt of the money in question it was incumbent upon the Appellant to ensure that the same was banked. In addition, that the court cannot be fa u lted for holding that th e Appellant ou ght to h ave known that t h e money received should have b een banked. 48. The Respondent, in the alternative , argued th at should the cou rt find that th ere was a breach of procedure in the dismissal of the Appellant, it ought t o h old that there was no inju stice or prejudice to the Appellant as h e was nonetheless guilty of the charges again s t him. In support of t his argument we were referred to the cas es of Bwalya v. Attorney General t16J and National Breweries Limited v . Mwenya f10J. -J21 - 49. The Respondent reiterated that the facts admitted by the Appellant show that he had committed a dismissible offence therefore any failure to follow laid down procedures cannot excuse the Appellant's conduct. Further, that the Respondent, in communicating the appeals committee's decision, omitted to refer to the erroneous authorization of payment of commission which offence was also dismissible . 50. It was contended that the failure to include the second dismissible offence by the Respondent was inadvertent although the minutes of the appeals committee show that the committee upheld the disciplinary committee's decision to dismiss the Appellant on the ground of negligence. Further, that failure to refer to the second charge in the letter did not absolve the Appellant on this charge. 51 . With regard to the issue of damages, the Respondent argued that an employee, whose contract has b een t erminated, ought to mitigate his own situation. We were referred to an extract from the Halsbury's Laws of England where the learned a uthors stated that an employee who is in breach of his contract has to take reasonable steps to mitiga te his loss. -J22- 52. It was contended that having found alternative employment following his dismissal, the Appellant cannot be entitled to unpaid salaries. Further, that the Respondent was justified in commencing crim inal proceedings against him. We were referred to the case of National Airports Corporation Limited v . Reggie Ephraim Zi mba and Savior Konie f17J where the court discussed assessment of damages in employment being generally the notice period. 53. The Respondent submitted that should the court award damages, it should consider the notice period under the contract between the parties. Further, that as guided in the case of Chilanga Cement Plc v. Kasote Singogo f18J, the court should also take into account the fact th at the Appellant found alternative employment. According to the Respondent, the Appellant having found alternative employment, this is not a proper case for the court to award excessive damages. In addition, that the criminal proceedings were as a result of the Appellant being implicated in the theft of company funds . 54. It was contended that in line with the Respondent's disciplinary code the Appellant was not entitled to full pay. We were referred -J23- • to the Supreme Court case of Bank of Zambia v. Martin Simumba r191 where it was held that once an employee is suspended all obligations are suspended . 55. The Respondent argued that the Respondent was therefore justified when it suspended the Appellant on half pay as the Respondent was under no obligation to pay the Appellant at all. The Respondent urged the court to dismiss the appeal as it lacks merit. DECISION OF THE COURT 56. We have considered the appeal, the evidence adduced on record, the authorities cited and the submissions advanced by the Learned Counsel. 57. The undisputed facts are that the Appellant was employed by the Respondent as a sub-branch manager based at its Choma office. The Appellant traveled to Siavonga, whilst there he received the sum of K3, 170, from a client, Mr. Ihman. The Appellant was in the company of a sales agent, Henry Hampondela . The money was acknowledged as received but not receipted. Upon return, the money was not deposited as required. It is further not in -J24- issue that the Appellant had authorized the payment of commission to a sales executive, Henry Hampondela in the su m of K2, 616.61. 58. Following the above events, the Respondent charged the Appellant with the offence of misappropriation of funds and negligence. The disciplinary committee heard the charges and found the Appellant guilty on both charges and dismissed him. The Appellant appealed to the appeals committee, which absolved him of liability on the charges of misappropriation of funds. The appeals committee however found the Appellant highly negligent by virtue of h is failure or omission to ensure that all premiums collected are banked, resulting in loss of company funds. ISSUES ON APPEAL 59. Though the Appellant has raised 7 grounds of appeal, in our view the k ey issues raised for determination which we shall address are as follows; i. Whether the Appellant was wrongfully or unlawfully dismissed from employment . ii. Whether it was competent for the Appeals commi tte e to uphold the dismissal based on a charge of failure t o bank a premium, simply -J25- ,, put whether the charge of negligence for failure to bank a premium was ever subject of the proceedings of the Disciplinary Committee. iii. Whether the Appeal's Committee had breached the procedural rules and rules of natural justice in upholding the disciplinary committee's decision to dismiss the Appellant. WRONGFUL AND UNLAWFUL DISMISSAL 60. The concept of wrongful dismissal is a product of common law. According to the learned a u th or of Employmen t law in Zambia, "when considering whether dismissal is wrongful or not, the form rather than the merits of the dismissal must be examined the question is not why but how the dismissal was effected". 61. It is trite law that wrongful dismissal arises when an employer terminates an employee's contract of em p loym ent contrary to the terms of the employment or pr ocedure. The Supreme Court in First Quantum Mi ning Operations Limited v . Obby Yendamoh r2 o1 held at J39 that; "We agree with the findings of the Court below that wrongful dismissal addresses the procedure adopted in effecting the dismissal ... " In the case of Peter Upite Chishika v. First Quantum Mining and Operation f21J we held that; "Wrongful dismissal referred to at times as wrongful termination is a situation in which an employee's contract of employment has been -J 26- terminated by the employer in breach of one or more terms of the contract of employment. " Fur ther , in our earlier decision of Zambia Telecommunications Company Limited v. Eva Banda f22J we h eld that; "wrongful dismissal is dismissal by the employer in breach of contract and gives rise to an action for wrongful dismissal at Common Law. " The learned authors of Halsbury's Laws of England 4 th Edition define wrongful dismissa l a s; "a dismissal in breach of the relevant provision in the contract of employment relating to the expiration of the term for which the employee is engaged .... " With r egard to unlawful dismissal, we h eld in Kalumbila Minerals Limited V Bupe Kabamba f23J that; " ... if the court forms the view that the disciplinary authority did not act reasonable in dismissing the employee, it can hold the dismissal unlawful notwithstanding the fairness of the process. " 62. The Appellant has vehemently argued th at the app eals committee fou n d the Appellant guilty b ased on a fresh charge that was not subject of the original disciplinary committee h earing namely, the Appellant's failure to bank the premium he had collected from a customer in Siavon ga in the s um of K3, 170.00. -J27- 63. The Respon dent on the other hand maintained that the appeals committee m erely upheld the decision of the disciplinary committee to d ismiss the Appellant. Furth er, that despite absolving the Appellant of th e charge of misappropriation of th e Respondent's funds, the appeals committee found the Appellant liable on account that he was negligent when he failed or omitted to ensure that all premiums collected were bank ed, resulting in loss on the part of the Respondent. 64. We have perused the record of appeal and are of the view that the charge of failure to bank the premium collected from a customer was subject of the disciplinary committee hearing. We refer to the ch arge sheet at page 38 of the record. The Appellant was charged with misappropriation of company funds and negligence resulting in loss of company money. The statement of allegations as per charge s h eet states, at lines 21 -26, as follows; "It is alleged that on or about 23r d June, 2009 you received K3, 170, 000. 00 [unrebased] from Mr. Peter Ilman of Siavonga been [being] premium payment and property of ZSIC General Insurance without issuing official receipt or banking said funds upon return from Siavonga ... " -J28- 65. In his answer to the charges, the appellant stated that they returned back to Choma from Siavonga late. The following day in the morning, he rushed out of the office not knowing that the money was not handed over to the underwriter by Henry Hampondele for receipting as per usual practice. The Appellant only discovered this in December, 2009. 66. Clearly, the issue of failure to bank the money received had been before the disciplinary committee. The Appellant had an opportunity to respond to the allegation. The Appellant in his statement at page 39 of the record of appeal, admits receiving the said money. In fact at lines 26 and 27 on page 39 of the record of appeal, the Appellant stated that he received the money in issue from the customer for and on behalf of the Respondent. 67. We hold the view that in the circumstances, the Appellant cannot argue that he was found liable on a fresh charge by the appeals committee when the issue of receiving and failure to bank the money was before the disciplinary committee. There were no fresh charges proffered by the appeals committee. It was therefore competent for the appeals committee to uphold the dismissal based on the charge of negligence for failure to bank a -J29- premium. As to the issue of whether there was breach of ..... procedural rules, we are of the view that there was no procedural irregularity in the manner the Respondent dismissed the Appellant. 68. As regards the alleged claim of wrongful dismissal it is our view that the trial Judge cannot be faulted for holding that the dismissal was neither wrongful nor unlawful. The disciplinary procedures were followed and the Appellant was afforded an opportunity to be heard . Further, there was no evidence before the trial court that the Respondent had breached any of the Appellant's contractual terms. We equally hold that the dismissal was not unlawful, it was justified. 69. As regards the claims for payment of salaries forgone, leave days, commutation of leave days, and portable benefits, we are of the view that the Appellant is not entitled to them as he was not working during the period of his suspension. To hold otherwise would result in the Appellant being unjustly enriched. Further the claim for separation benefits is not tenable, the Appellant having been dismissed. Equally, the claim for expenses incurred -J30- 1n respect of criminal proceeding 1s untenable . The said prosecutions were in respect of the charge proffered by the state. 70. Having found that the dismissal was neither wrongful nor unlawful, the Appellant is not entitled to compen sation for loss of employment and mental anguish. The lower court was therefore on firm ground to dismiss the claims by the Appellant. CONCLUSION 71. We find no merit in this appeal and accordingly dismiss it, with costs to the Respondent to be taxed in default of agreement. F. M. Chishimba COURT OF APPEAL JUDGE ••••...............••••...•........•..•.••• P. C. M. Ngulube COURT OF APPEAL JUDGE M. J . Siavwapa COURT OF APPEAL JUDGE