Zachs Apuleni v Konkola Copper Mines Plc (APPEAL NO. 89/2008) [2013] ZMSC 69 (14 November 2013)

IN THE SUPREME COURT OF ZAMBIA APPEAL NO. 89/2008 HOLDEN AT LUSAKA (Civil Jurisdiction) BETWEEN: ZACHS APULENI AND APPELLANT KONKOLA COPPER MINES PLC RESPONDENT • CORAM: Sakata, C. J, Chibesakunda, Mwanamwambwa, J. J. S. On the 2 nd of July, 2009 and 14th November, 2013 For the Appellant: Mr .. C. Mundia, SC of Messrs CL Mundia & Company For the Respondent: Mr .. N. Nchito of Messrs MNB Legal Practitioners JUD6MENT Mwanamwambwa, JS, delivered the Judgment of the Court. Cases referred to: 1. Thomson Mutwale v. Attorney General (1998) ZR, 243; 2. Bank of Zambia v. Kasonde (1995-97) ZR 238; 3. Zambia National Provident Fund v. Yekweniya Mbiniwa Chirwa ( 1986) ZR 70 4. National Breweries PLC v. Phillip Mwenya, (2002) ZR, 118 s. GDC Hauliers (Z) LTD v. Trans Carriers Limited (2001) Z. R. , , , J2 When we heard this appeal, Hon. Mr. Justice E. L. Sakala, CJ was part of the Court. He has since retired. Therefore, this Judgment is by the majority. This is an appeal against the Judgment of the High Court, dated the 21 st of January, 2008. By that Judgment, the Learned trial Judge dismissed the Appellants case against the Respondent for wrongful dismissal. The brief facts of the case are that on the 2 nd of January, 2004, there was an accident at Nchanga Mine, owned by Konkola Copper Mines (hereinafter referred to as "KCM"). In that accident, three persons were injured. Pictures of the victim's bodies were taken so that they could be used during treatment. The victims had to be undressed before the pictures were taken so that pictures of the injured parts could be taken as well. The pictures were taken using a digital camera and stored electronically. After the accident, e-mails of the pictures in question began to circulate on employees' computers at KCM. An investigation was conducted to establish the source of the e-mails. Through the Information Technology Department at KCM, it was established that the e-mails were circulated by the Appellant. The Appellant had asked his subordinate to send them to him. The Appellant then circulated the e-mails to other employees of KCM. DW2 , Yotam Maxwell Phiri, decided to charge the Appellant and other KCM employees for J3 circulating confidential information. The Appellant was charged with the following offences: 1. Breaching the requirements of KCM policy KCM-P-17 Sub section 4.1.6, 4.1.9 and Sub-section 4.3.1 of KCM-P-29 by distributing company information to third parties without authority. 2. Breaching KCM Grievance and Disciplinary procedure under clause 2.5. S(a) which forbids unauthorised disclosure of confidential information. Disciplinary proceedings were conducted and the Appellant, and other employees who were found to have circulated the • pictures, were dismissed from employment. They appealed against the dismissal but was unsuccessful. On the 5 th of May, 2004, the Appellant took out an action in the High Court against the Respondent, for: 1. 2. 3. Damages for wrongful termination of employment by the Defendant; Damages for mental distress and strain arising from the said termination as there were no justified reasons for the said termination; That when computing his terminal benefits, all allowances of regular nature, including those in kind should have been taken into account; 4. Interest on monies owing at current bank lending rates from the date of termination to date of settlement; Any other relief the Court may deem fit and appropriate; Costs. 5. 6. After evaluating the evidence and considering the submissions on both sides, the Learned trial Judge stated the following: - "It is quite clear from the evidence of both the Plaintiff and the Defendant that the Plaintiff circulated pictures of the accident victims without authorisation. It was also clear that the Defendant has a policy dealing with proper use of e-mail and that the Plaintiff breached the procedure (KCM-P-17 and KCM-P-29) when he circulated the pictures to J4 unauthorised people. The Plaintiff in his evidence failed to establish that he was not aware of the two documents. In fact, the Plaintiff, in this case did not deny circulating the pictures nor did he produce any evidence to show that proper procedure was not followed in conducting his case which finally ended in him being dismissed from employment. It is also clear from the evidence that the pictures of victims were taken for medical reasons only and not for circulation to the public. Quite clearly, the evidence shows that the Plaintiff committed an offence. What remains therefore in order for the Plaintiff to succeed with his claim for damages for wrongful dismissal is for him to show that the termination was unlawful. In my considered view, the Plaintiff did not adduce any evidence to support his claim that the termination was wrongful. However, the Defendant adduced evidence that the Plaintiff was dismissed in accordance with the terms and conditions of his employment in that he was charged and given an opportunity to be heard. The Plaintiff went as far as exercising his right to appeal, which appeal was unsuccessful ... In this case, the circulation of naked pictures was considered a very serious offence punishable by dismissal and therefore bringing the present case within the ambit of the decision by the Supreme Court in the case of Zambia National Provident Fund V. Yekwina Mbinwa Chirwa (1986) ZR 70 ... in my considered view, the evidence adduced in respect of this matter reveals that the Defendant Company complied with correct procedures and that the facts arising out of the evidence supported the disciplinary action. I therefore find that the Plaintiff's dismissal was not wrongful. In the event, the Plaintiff's claim is hereby dismissed with costs to the Defendant and such costs to be taxed in default of agreement." Dissatisfied with the decision, the Appellant has appealed to this Court. There are four (4) grounds of appeal. These read as follows: JS Ground one: The Trial Judge erred in Law and in fact by failing to evaluate the evidence before him effectively and correctly resulting in his dismissal of the Appellant's claims. Ground two: The trial Judge erred in Law and in fact by his failure to evaluate the evidence before Court in that the Conditions of Service relied upon by the Respondent namely KCM-P-17 and KCM-P-29 did not exist at the material time and could not therefore be breached. Ground three: The Trail Judge erred in Law and in fact by his finding that the Appellant did not adduce evidence to support his claim when he did so on oath in Examination in Chief by documents. Ground four: The Trial Judge erred in law and in fact by his failure to evaluate evidence correctly that the Appellant did not initiate the distribution of the pictures but received them by email from his subordinate and in turn brought the matter to his immediate supervisor and not third parties. The Appellant combined the four grounds into two. On behalf of the Appellant, Mr.. Mundia submitted on ground e one, that there was no evidence that the Appellant initiated the circulation of the pictures. That the Appellant received the photos from his immediate subordinate, Frank Kapika and that upon receipt of the photos, he sent them to his boss Nagaradi and his colleagues Maliseni and Friday Chibwe. He argued that no evidence was called from the Information Technology Department to prove that the Appellant originated the circulation. He argued that there J6 was no mark that the pictures were confidential and not supposed to be circulated. Mr. Mundia stated that 1n cases of this nature, the punishment ranged from reprimand, loss of email access, suspension, termination or legal prosecution. He submitted that in a normal situation, a first offender is given a lenient sentence and not dismissal like what happened to the Appellant. That the procedure used to dismiss the Appellant did not conform to the Conditions of Service of KCM. He argued that this Court held in the case of Thomson Mutwale V. Attorney General ( 1), that: "The procedure laid down for retiring officers was not followed. The retirement was therefore wrongful." That likewise in the case of Bank of Zambia V. Kasonde (2) , this Court held at page 241 that: "The Defendant is a public institution and those running it must at all times adhere to the principles of fair play. Dismissal based on misconduct must be on proven grounds. All employees should enjoy equal treatment under the ruling regulations." e In response, Mr. Nchito submitted that the pictures were taken for the purposes of assisting with the victim's treatment when they were evacuated to South Africa. He stated that the Appellant, on his own admission, circulated them. He argued that the evidence on record shows that the Appellant got the pictures from his subordinate, Frank Kapika. That Frank Kapika informed him that the pictures were confidential but that the Appellant pressurised Frank Kapika, who decided to send them to the Appellant. He J7 submitted that through the Information Technology Department, it was established that the pictures were circulated by the Appellant. He stated that the Appellant admitted having been charged before as evidenced by the disciplinary history sheet. Therefore, his claim that he has no previous offence in his Statement of Claim was a fabrication. He agreed with the authority cited by the Appellant's Counsel of Bank of Zambia V. Kasonde that any dismissal must be on proven grounds. He argued that all employees should enjoy equal treatment under the ruling regulations. That this is exactly what transpired in this case. That the facts underlying the dismissal were proven and equality exercised in that all the employees who circulated pictures were dismissed. He went on to submit that the Appellant did not adduce any evidence to support his claim that the termination was wrongful. That the Respondent on the other hand adduced evidence in the Court below to show that the dismissal was in accordance with the terms and Conditions of Service of the employee. We have considered the submissions and the evidence on record. Clause 4.3.1, paragraph 3, of the e-mail usage Policy, KCM P-29, provides that: "When using e-mail, users must not provide information that is confidential without having authorisation to do so from their respective managers." Clause 4. 5 provides that: J8 "failure to follow the e-mail usage Policy will lead to an employee's discipline, which may include reprimand, loss of e-mail access, suspension, termination, or legal prosecution." Clause of Communication Policy, KCM-P-17, provides that: the Acceptable Use 4.1.6 of Electronic "Users are prohibited from receiving or transmitting any material that, in the Company's sole discretion, is unlawful, obscene, threatening, abusive, libellous, hateful, or encourages conduct that would constitute a criminal offence or give rise to civil liability or breach of company policies." Clause 4.5.3 provides that: "Any disciplinary action arising from breach of this policy will be taken in accordance with the appropriate disciplinary code and procedures. An employee who fails to comply with this policy will be subject to disciplinary action, which shall not preclude dismissal." It is not in dispute that the Appellant received the e-mail containing the pictures from his subordinate, Frank Kapika. Upon receiving them, he sent them to three other persons. The evidence on record shows that Frank Kapika was reluctant to send the pictures to the Appellant but the Appellant insisted that Frank ~ Kapika sends them to him. The evidence on record also shows that the Appellant was informed by Frank Kapika, that the pictures were confidential. When we look at all this undisputed evidence and compare it with the policies cited above, we find that the Learned trial Judge cannot be faulted for holding that the Appellant was in breach of the policies on the acceptable use of e-mail facilities. We believe that all information within a work environment 1s confidential. Not all employees in an organisation are entitled to J9 receive certain classes of information. It is always incumbent upon an employee to keep work related information confidential and if the is not sure as to whether the information is confidential or not, to seek clearance from superiors. Therefore, the argument by the Appellant that he did not know that the pictures were confidential does not hold water. Further, the Appellant's argument that the pictures were not marked confidential is also not a valid argument. The pictures were not marked for circulation either. Therefore, it was incumbent upon the Appellant, who knew that the pictures were confidential, to seek clearance from his superiors before sending them to other employees. The Appellant argued that the policies in question were not in existence at the time he allegedly committed the offence. We do not agree with this argument. KCM-P-29 came into effect on the 18th of June, 2003, while KCM-P-17 came into effect on the 3 rd of July, 2002. This was way after the Appellant started working for the 19 Respondents and way before the circulation of the pictures in question. The argument, therefore, has no merit. The Appellant argued that no evidence was adduced from someone from the Information Technology Department to show that he originated the circulation. He argued that the evidence of DW2, to the effect that it was established through the Information JlO Technology Department that he originated the circulation, was hearsay. We note that this evidence by DW2 was not challenged in the Court below. That is how it has found itself on record. However, even if this part of DW2's evidence was not on record, the Appellant did not deny circulating the confidential pictures to three other persons. It does not matter whether he circulated to outsiders or insiders, the circulation, as we have already said above, was without authority and against company policy. That is the reason why Frank Kapika, who sent the pictures to one person, who was - - the Appellant, was dismissed from employment for circulating confidential information. This is because the circulation was against the company policy. Clause 4.5 of the e-mail usage Policy provides that a person who contravenes its contents is liable to disciplinary action which may include reprimand, loss of e-mail access, suspension, termination, or legal prosecution. This clause uses the word "may." This means that the disciplinary action envisaged under this clause is not limited to the ones that have been listed. It may be extended to any other form of disciplinary action. On the issue of the Appellant not being a first offender, it is clear from the evidence on record, and on his own admission that he was not. An examination of Page 204 of the record of appeal shows that Appellant had previous offences. This argument does not therefore arise. J11 The Appellant urged this Court to consider its decision in the Thomson Mutwale case on procedure. We have looked at the Thomson Mutwale case and find that it is distinguishable from the case before us . In the case of Thomson Mutwale , the Appellant had been cleared of the allegations levelled against him. The President then, despite the clearance, directed the Police and Prisons Commission to retire the Appellant in public interest. Regulation 43 of the Police and Prisons Regulations required that a certain procedure is followed before an officer is retired in public interest. This procedure was not followed. In the case before us , the Appellant committed an offence and as we have said above, the evidence on record proves this fact. In the case of Zambia National Provident Fund V. Yekwina Mbinwa Chirwa (3), we held that: "Where it is not in dispute that an employee has committed an offence for which the appropriate punishment is dismissal and he is also dismissed, no injustice arises from a failure to comply with the laid down procedure in the contract and the employee has no claim on that ground for wrongful dismissal or a declaration that the dismissal is nullity." The above position was confirmed in the case of National Breweries PLC V. Phillip Mwenya (4), where we held that: "Where an employee has committed an offence for which he can be dismissed, no injustice arises for failure to comply with the procedure stipulated in the contract and such an employee has no claim on that ground for wrongful dismissal or a declaration that the dismissal is a nullity." J12 From the above authorities, it is clear that the argument by the Appellant on the above issue has no merit. The evidence confirms that the Appellant circulated the pictures in question without authority. Therefore, the case of Bank of Zambia V. Kasonde, cited by the Appellant does not apply. This is because we have already established that the dismissal of the Appellant was based on a finding that he was guilty of circulating confidential information. He was not the only employee dismissed on grounds of circulating confidential information. Other employees, including his subordinate, were also dismissed for the same offence. Under Ground two, Mr. Mundia submitted that under the KCM Disciplinary Grievance Procedure, the immediate supervisor was responsible for charging an employee. He stated that in this case, the Appellant's immediate supervisor was Nagaradi. That however, in this case, the Appellant was charged by Yotam Phiri. That in light of this, the Conditions of Service were not followed in charging the Appellant. That where the Conditions of Service are not followed in terminating an employees employment, the termination is wrongful. He referred us to the Thomson Mutwale case to support his argument. He argued that there was no evidence that the Appellant had committed the offence. That the case of National Breweries Limited V. Phillip Mwenya does not apply in this case as there was no offence committed. ' .. J13 In response on this ground, Mr. Nchito submitted that the Appellant was aware of the rules governing circulation of the company information and use of e-mail. That this is because before an employee is given a personal computer for use in the office , the company policy is that they are given two procedures KCM-P-29 and KCM-P-17. He urged this Court not to reverse the lower Court's findings of fact. He cited the case of GDC Hauliers (Z) LTD V. Trans Carriers e Limited (5), where it was held that: "the findings of fact made by the trial Court should not be lightly interfered with where there was no basis for upsetting the findings of fact or viva voce evidence by an appellate Court which did not see and hear the witnesses first hand." We have considered the submissions and evidence on this ground. It is clear from the evidence that Yotum Phiri charged the Appellant, and not Nagaradi, who was the Appellant's immediate supervisor. The Conditions of Service for the Respondent provided that an employee should be charged by the immediate supervisor. In light of this , we agree with the argument by the Appellant that the procedure provided for under the conditions of service was not followed. However, the issue of procedure comes back to what we said in the cases of National Breweries V. Phillip Mwenya and Zambia National Provident Fund V. Yekwina Mbinwa Chirwa. We have already stated above that the evidence on record proves that J14 the Appellant committed an offence. Therefore, the fact that the Appellant was not charged by his imrr ediate supervisor ,does not make the dismissal of the Appellant wrongful. This is because he committed the offence. Having found that there is no merit on both grounds of appeal, this appeal is dismissed. We award costs to the Respondent, to be taxed in default of agreement. (!) . L. P. Chibesakunda AG/CHIEF JUSTICE SUPREME COURT JUDGE