Zambia Airways Corporation Ltd v Rubiolo (Appeal 8 of 1993) [1993] ZMSC 113 (14 September 1993)

1H THE SUPREME COURT OF ZAMBIA APPEAL KO. 8 OF 1993 " ' ' ' ' ’ - - .a*1* HOLDEN AT LUSAKA (Civil Jurisdiction) BETOEM: ZAMBIA AIRWS CORPORATION LIMITED Appellant end FLORA RUBIOLO , • -- _ Respondent -1-. - V*. "J CORAM: Hgulube C. J.. Gardner and Chirva, JJ. S. at Lusaka on 25th February and 14th September, 1993. For the Appellant: Mr. A. G. KinariwaU, Legal Services Corporation. For the Respondent: Mr. H. H. Ndhlovu, H. H. Ndlovu and Company, ........ ; ........... . aU0GH EKT Chirva J.5. delivered judgment of the Courts* ■ ' ■ / . - - - " , ■ • ■ Cases referred to:* ■ . - -AX - ' . (1) Mumba vs Zambia Publishing Company (1982) Z. R. S3 The history of this natter Is'that tha^fe^ was employed by the appellant in 1967 asTan'-air-Tiostes^ and at the time of her termination of her employment she rose to the rank of Supervisor air hostess. Sometime in 1987 the appellant got some information from the security wings of the Government that the respondent was Involved In drug trafficking. She was put on suspension while the appellant was Investigating the allegations. Sometime in early 1988 the respondent had a meeting with some officials of the appoHantincludtng the Personnel Manager who was defence witness in the Court below. The meeting was about the allegations of the respondent*s involvement in drug trafficking. The mooting took sometime and during tne meeting the respondent was told that 1ft view of the seriousness of. the allegations she should resign or she would be dismissed. /2... After the •^32^ After the meeting she went home and wrote a letter dated 2nd May* 1936 resigning due to domestic problems which she wanted to sort out and handed thia letter to the Personnel Officer of the appellant. Thereafter she went to seek legal advice where sho was advised co withdraw the letter of resignation and in its place tender a lector of retirements She wrote the letter of retirement as advised by her lax^yers and again cook this letter Co the Personnel ^officer and asked to withdraw bar earlier letter of resignation but the Personnel Officer told her that he would forward her second letter but refused co surrender the resignation letter. On 15tb June, 1936 the appellant* through the Personnel Manager wrote the respondent accepting her resignation and was told chat her terminal benefits would be calculated up to 27th September, 1988. Being dissatisfied ' with the decision* the respondent sued the appellant in the High Court. The endorsement on the writ claimed for a declara^ ' tion thatj- -V?. (a) She had not resigned from services with the defendant (appellant) and as such the defendant's acceptance of the resignation was null, and voids *•’* • ■' (b) the decision of cho defendant (appellant) to back­ date the resignation is null ond void. The learned trial Judge after a trial found th^c the circum- stances under which the respondent was made co write the letter of resignation were not free and voluntary in that she was given an option of resigning or co ba diamieaed and he granted the declaration chat her purported resignation was null and void and the decision co back-date the letter was also null and void. He however ordered that since the respondent could not be forced bock into employment she was entitled Co damages as claimed co bo easessed by the Deputy Registrar, It la against Chess declare- cions chat the rappallant has/appealed 3/Mr, Kinariwala... i -J3- . ■■ <' -j . Mr. Kinariwala for the appellant argued two grounds of appeal. The first ground was to the effect that the learned* trial Judge erred in granting the ^declarations that the letter was written under coercion and duress in that her evidence to that effect at trial was not just a mere variation of the pleadings but a totally different case altogether and as such she was not entitled to the declarations granted^ The second ground of appeal was that the learned trial Judge erred in holding that the resignation letter was not free and voluntary in that there was no evidence proving that fact. In reply for the respondent it was submitted that what they claimed was a declaration that the respondent had not resigned so that if that was granted the respondent should have been treated as having retired so that she enjoys certain privileges'such as free air travel wherever the appellant operated like others of the-1ike of Mrs. Adams. It was also submitted that they were claiming damages for wrongful dismissal in this case three (3) months pay.in lieu of notice. In reply to the argument that the respondent's case was different from that as pleaded, it was submitted that the appellant raised no objection to the evidence beipg^ed which was । ■ ■ ■ ■■ ■ not in line with the pleaded case. We have considered the arguments advanced by the parties. We note that the case for the respondent as pleaded was for a declara- tion that she did not resign from her employment because the letter purporting to be the letter of resignation was withdrawn. We further note that in her evidence the respondent stated that she war given a choice to resign or to be dismissed and that because the two choices were both detrimental she considered this as duress. Taking her evidence, we agreed with Mr. Kinariwala that the case as pleaded was not supported by evidence that could have earned her the declarations she sought. We would regard her evidence aS not a variation or modification but a radical departure from her case whic as we said in Mumba v Zambia Publishing Company (1) would not entit] 3/her to..... -J4- succeed. Her case was that: she had withdrawn her resignation letter but the learned trial Judge considered the matter on the basis that she did not have a free will when she wrote the lett and because of this the letter was null and void ab inition. T total departure from the pleaded case cannot be supported by an argument that there was no objection from evidence being led establishing a totally different case. On the case as pleaded, the respondent having written a letter of resignation, which decision was a unilateral one on the part of the respondent, and the letter having been received by the appellant and acted upon that conclusively terminated her employment. As the trial Judg< correctly stated, the respondent could not be forced to work, the appellants could not have rejected the respondent's letter < resgnation. The best any party can fall bn in situations of ■ unilateral decisions such as termination of employment or servi< is damages measured in terms of length of notice required.to. be given before terminating employment if nope is provided for, then a reasonable period of notice. Having, saidfthis, we agree with the appellant’s argument that the learned trial Judge errec in granting the declaration that the letter of resignation was null and void. The resignation letter was valid and effectively terminated the employment. The respondent infact was fortunate ‘ "‘j ' ; that she was given three months before her services.were terminated and that was reasonable notice. He therefore set aside the declarations granted and hold that the resignation letter was valid. We therefore allow this appeal with costs both in this Court and the court below. . M. S. W. NGULUBE" CHIEF JUSTICE JGSRDNER SUPREME COURT JUDGE n if chtrua SUPREME COURT JUDGE ■ AM • ■■ A.