Zambia Revenue Authority v Mbao and Ors (SCZ Appeal 89 of 2000) [2001] ZMSC 153 (27 June 2001)

IN THE SUPREME COURT OF ZAMBIA HOLDEN AT KABWE & LUSAKA (Civil Jurisdiction) SCZ APPEAL NO. 89/2000 ZAMBIA REVENUE AUTHORITY AND KANGWA MBAO CLAVEL MWILA MUTALE NICHOLAS KABWE MWILA RESPONDENT 1st RESPONDENT 2nd RESPONDENT 3rd RESPONDENT Coram: Sakala, AG. DCJ., Chaila and Chirwa, JJS On 18th April and 27th June 2001. For the Appellant: For the Respondents: Mr. P. Chisi of Chifumu Banda Associates. Ms. C. Shapi, Legal Officer. ______________________________JUDGMENT_______________________ Sakala, JS., delivered the Judgment of the Court. Case referred to: 1. ZCCM VS MA TALE (1995-199 7) ZR 144. This is an appeal against a Judgment of the Industrial Relations Court entered in favour of the three respondents and thereby awarding them a sum of KI 5 million each as compensation for unlawful termination of their employment with the appellant. There is also a cross-appeal by the three respondents against the court’s refusal to make an order for reinstatement. The three respondents worked for the appellant before their services were terminated. The first respondent joined the appellant on 6th February, 1995 and rose to the position of Customs Officer. The second respondent joined the appellant on 1st November 1995. He rose to the position of Senior Investigations Officer. The third respondent joined the appellant on 25th March, 1995 and rose to the position of Assistant Investigations Officer. The respondent’s services were terminated on the same day, 15th July, 1997, under clause 2.10.1 of the appellant’s Staff Administration Manual relating to either party giving to the other written notice of termination. The three respondents brought a complaint under Section 85(4) of the Industrial and Labour Relations Act. They complained that they were discharged from : J2 : employment with the appellant without being given any reasons and without being given an opportunity to be heard contrary to Section 13.1 of the Staff Administration Manual and the rules of Natural Justice. They sought reliefs of a declaration that the termination of their services was unlawful, and damages for unlawful termination. Each of the respondents gave oral evidence in support of their respective claims. The Director of Human Resources gave evidence on behalf of the appellant. On the evidence, the court found that it was not in dispute that at one time during their services, there were allegations of corruption against the three respondents. The respondents were not aware of these allegations until when they were completed and informed that they had been cleared. It was also common cause that two weeks after the respondents had their services terminated, an article appeared in the Times of Zambia stating that at least 20 Zambia Revenue Authority Workers had been dismissed for alleged corruption and other related charges. The evidence of the first respondent was that soon after he was cleared on the allegations of corruption, he was transferred to Ndola. He only worked for two months in Ndola before he received a letter terminating his services. The evidence of the second respondent was that on 5th May, 1997 he went on compassionate leave. When he returned, he found his office had been “burgled” by a very Senior Officer, an Assistant Commissioner in Charge of Investigations, Mr. Katondo Maliti and took away two dockets, one involving Step -Into Enterprises owned by a Mr. Pandoliker, a person the second respondent was investigating. According to the second respondent, when he prepared a bill for Step-Into Enterprise to pay the outstanding duty, Mr. Maliti refused to approve. The second respondent also testified that when he visited Pandoliker in the course of investigations, he told him that the investigations would bear no fruit because he paid school fees for Mr. Maliti’s children. : J3 : There was also evidence from the 3rd respondent that after he had been cleared of the corruption allegations, the appellant advertised for some positions which fell vacant. He applied for the position of Investigations Officer. He was called for interviews which he attended at 10,40 hours on 16th July, 1997. But at 16.40 hours the same day, he received a letter terminating his services dated 15th July, 1997. When he queried Mr. Maliti, he was told that Mr. Murray, then Acting Commissioner of Customs and Excise, said that he had seen some allegations about him concerning corrupt activities. The evidence of the third respondent was further to the effect that Mr. Murray said that although he was cleared of the corrupt activities, the activities were too serious and recommended termination of his employment. It was not in dispute that all the three respondents had no history of any disciplinary charges against them. The respondents’ contentions were that the terminations were unlawful and in bad faith. After reviewing the evidence relating to each respondent, the court was satisfied that there were other reasons behind the termination of the respondents’ services other than the notice clause. The court considered the notice clause and the current labour practice. The Court held the view that the appellant abused the notice provisions. Ms. Shapi argued three grounds of appeal on behalf of the appellant. We heard submissions on these grounds that the termination of services were in accordance with the Conditions of Service relating to notice. It was argued that the allegations of corruption had nothing to do with the terminations. It was submitted that all the allegations by the respondents were mere speculations. It was also submitted that the court erred in finding that there were other reasons behind the termination. Finally, it was submitted that the award of KI 5 million as compensation was excessive and should be set aside to be substituted with six months salary for each respondent if the court upheld the findings of the trial court. Mr. Chisi on behalf of the respondent supported the findings of the trial court. He submitted that the terminations were not normal. They were tainted with malice and abuse of office. : J4 : Counsel contended that the court was entitled on the evidence before it to have delved behind the notice clause. In support of this contention, Mr. Chisi pointed out that the terminations were done in the face of a report which cleared the respondents of the allegations of corruption. He also pointed out that the evidence of the second respondent which was not rebutted that a Mr. Murray who alleged that although the respondent was cleared, the allegations were too serious and recommended termination of service. Above all, Mr. Chisi argued that there was the advertisement in the Times of Zambia, three weeks after the terminations of services, which stated that the recent terminations were as a result of corrupt allegations. Counsel submitted that the terminations were related to all these facts for which they were not given any opportunity to exculpate themselves. On the cross-appeal, Mr. Chisi submitted that in addition to the compensation of KI 5 million, the respondents should be reinstated because the appellant is a public institution. He pointed out that the respondents were young men with good record of performance as evidenced by the appraisal reports. We have considered the evidence on record and the Judgment of the trial court. We take note that the trial court in arriving at its decision took into account the provisions of Convention No. 158, Articles 4 and 7 of the International Labour Organisation in relation to termination of employment. We wish to point out that, although Zambia is a member of the International Labour Organisation and has ratified and accepted a number of the Conventions and Recommendations, the same have not yet been domesticated into our laws. However the approach this court took in the case of ZCCM LA MATALE (1) does conform with the International Labour Organisation Convention though not domesticated yet. The respondents brought their complaints under Section 85(4) of the Industrial and Labour Relations Act. : J5 : This subsection reads: "The Court shall have the jurisdiction to hear and determine any dispute between any employer and an employee notwithstanding that such dispute is not connected with a collective agreement or other trade union matters. ” In considering this subsection in the MATALE case, this court had this to say “There is nothing in the language of this subsection to suggest that certain genuine complaints or any particular kind or category may not be litigated, such as wrongful, unjust or unfair dismissal. The mandate in ss(5) which requires that substantial justice be done does not in any way suggest that the Industrial Relations court should fetter itself with any technicalities or rules. In the process of doing substantial justice, there is nothing in the Act to stop the Industrial Relations Court from delving behind or into reasons given for termination in order to redress any real injustices discovered; such as the termination on notice or payment in lieu of pensionable employment in a parastatal on a supervisor's whim without any rational reason at all, as in this case. ” In the instant case, there appeared to be causeless termination of public employment simply because of a notice clause. The court was perfectly entitled in delving behind the notice clause. By so doing, the court found that during the respondents employment, they were investigated on allegations of corruption without their knowledge but cleared. The respondents did not face any other disciplinary action. The court accepted the evidence that few weeks after the respondent’s termination of services, an article appeared in the Times of Zambia which read “At least 20 Zambia Revenue Authority (ZRA) workers have been dismissed from various stations for alleged corruption and other related charges, Public Relations Manager Michael Mwape confirmed in Lusaka yesterday. " According to the record, this report was never refuted or rebutted. The first respondent had his services terminated barely two months after his transfer to Ndola. The court expressed concern that if the termination was indeed genuine, was the transfer then necessary? The court accepted the second respondent’s evidence of Mr. Maliti’s conduct in refusing to approve the bills he prepared following certain investigations. The court also accepted the evidence of the third respondent about bashing the car of the Chairman of the Appellant. The court further : J6 : found that the respondents’ unrebutted evidence was too much of a coincidence and that it was clear that there were other reasons behind the termination of services than mere reliance on the termination clause. The court, in the instant case, found in effect, that for a variety of reasons, these were unlawful and unwarranted terminations because there was no offence committed by the respondents and the rules of natural justice had not been followed. These findings justified the judgement being entered in favour of the respondents. This brings us to consider the submissions and arguments advanced on the award of KI5 million which also relates to the cross appeal which asks for reinstatement. Our short reply on the quantum awarded is that when the Industrial Relations Court considers to award compensation for unwarranted termination, the normal measure of damages at common law is ousted by the requirement to do substantial justice. In the circumstances of this case, we can find no justification to interfere with the quantum awarded. As regards reinstatement raised in the cross appeal, the trial court considered the submissions by Mr. Chisi who also appeared for the respondents at trial. The court found that the case had generated sufficient tension or potential tension that making an order of reinstatement would be unwise and unpractical. Before this court, counsel advanced same submissions that the appellant is a public institution and that the respondents were young men. As has been said before, the remedy of reinstatement is discretionary. We find no justification to order reinstatement here. The appeal is therefore dismissed. The cross appeal is also dismissed. On costs we think that the appellants should bear the costs of this appeal and we so order . These costs will be taxed in default of agreement. E. L. Sakala, M. S. Chaila, D. K. Chirwa, SUPREME COURT JUDGE SUPREME COURT JUDGE SUPREME COURT JUDGE