Zambia State Insurance Corporation Ltd v Zingani (Appeal 208 of 2000) [2003] ZMSC 112 (29 July 2003)

IN THE SUPREME COURT OF ZAMBIA Appeal No. 208 of 2000. HOLDEN AT LUSAKA BETWEEN ZAMBIA STATE INSURANCE CORPORATION LIMITED Appellant And PAUL HARRY ZINGANi Respondent Coram: Lewanika: DCJ, Chaila and Mambilima, JJS, on the 19th Of July 2001 and 29th July, 2003. For the Appellant: Mr. M. Mundashi of Messrs Mulenga Mundashi & Company. For the Respondent: Mr. H. H. Ndhlovu of Messrs H. H. Ndhlovu & Company. JUDGMENT Mambilima, JS, delivered the judgment of the Court. Authorities referred to: (I) Zambia Revenue Authority vs Godfrey Kasungani; SCZ Judgment No. 39 of 1999. (2) Ruth Phiri vs B. P. Zambia Limited; SCZ Judgment No, 16 of 1999, We regret the delay in delivering this judgment. When we heard this appeal, we sat with our brother Chaila JS and he was to write the judgment of the Court. He demised before he could do so. This judgment should therefore be taken as the majority decision of the court. The facts of this case can be briefly slated. The Respondent was in the employment of the Appellant as an Assistant Sales Manager. He was based at Kabwe. On 6th September 1993, he was charged with two offences, one of Poor Supervision and the other of Failure to follow lawful instructions. A disciplinary case hearing was held on 24th September 1993. The Disciplinary Committee established that the charges against the Respondent were true in that the respondent was not concentrating on his job or closely supervising the sales representatives in Kabwe. He spent most of his time on personal errands. As a result of the Committee’s findings, the Appellant demoted the Respondent to the position of Independent Contractor. In the letter of demotion, the Appellant’s Human Resources Manager observed that the offences committed by the Appellant were very serious, warranting termination of employment but that after considering mitigating factors pertaining to this particular case, management had decided to demote the Respondent. The Respondent then sued the Appellant in the Court below claiming inter alia, a declaration that his demotion by the Appellant from the position of Assistant Sales Manager to that of Independent Contractor was null and void. He sought an order of reinstatement to his former position with full benefits. In the alternative, he sought damages for wrongful demotion and costs. At the close of the trial, the court below (Mutale J) found that procedure was not followed and that the termination of the Respondent’s employment was unlawful as it was not supported by evidence. The learned trial Judge found that the claims by the Appellant against the Respondent were not proved. He stated that the evidence given by the Appellants witness was hearsay and secondary and on a balance of probability, he found more weight in the Respondent’s denials. The learned trial judge then went on to consider the question of summary dismissal and referred to a number of authorities on the matter. He concluded that the decision to transfer the respondent to contractor-ship was not within the ambit of the master and servant contract. The learned trial Judge then declared that the demotion of the Respondent was wrongful and therefore null and void since it was contrary to the contract of employment. He declined to order reinstatement and instead awarded the Respondent damages for wrongful dismissal and demotion with interest, to be assessed by the Deputy Registrar. The Appellant has appealed to this court against this finding by the court below' and argued one ground of appeal, namely, that the learned trial judge erred in law and fact by holding that the appellant had wrongly dismissed the respondent and had acted ultra vires the Respondent’s contract. In support of this ground of appeal, Mr. Mundashi submitted that the Respondent in his suit had claimed and pleaded his case on the basis that he had been wrongly demoted. He argued that the respondent in his testimony did not seriously challenge the charge of failing to carry out instructions which carried a penalty of summary dismissal. What he challenged was the penalty of demotion. Mr. Mundashi referred us to our decision in the case of Zambia Revenue Authority vs Godfrey Kasungani (1) in which, according to Mr. Mundashi, we upheld the Appellant’s argument that the court below had erred in law and fact to have ordered reinstatement when the respondent hud pleaded a case of wrongful dismissal. He also referred us to our decision in the case of Ruth Phiri vs B. P. Zambia Ltd (2) in which we held that the trial courts findings must be supported by the evidence on record. Mr, Mundashi submitted further that the learned trial Judge was in error to have. proceeded on the basis that the Appellant was dismissed and no evidence was led to justify the unlawful dismissal. The case was argued on the basis of wrongful demotion, which according to the respondent was not the correct penalty for the offence he committed. In response, Mr. Ndhlovu submitted that the respondent was engaged under Z1MC0 conditions of sendee and as such any action against him should have been laid down in the ZIMCO disciplinary and grievance code based on the contract of employment. The code was not followed and there was no evidence given that the respondent was ever warned. According to Mr. Ndhlovu, the court below was right to have found that the punishment meted on the respondent was outside the disciplinary and grievance code. He submitted further that there was no evidence before the trial court to support the charges against the respondent and that there is nothing in the disciplinary' and grievance code, which empowered the appellant to take the action it did against the respondent. We have considered the judgment of the lower court and the submissions by counsel. From the record of appeal, it is clear to us that the Respondent was charged with the offences of Poor Supervision and failure to follow lawful instructions. The offence of refusal to obey lawful instructions appears as offence number 18 in the grievance and disciplinary code and it carries a penalty of summary dismissal. The Respondent was given a chance to exculpate himself and a disciplinary hearing was held at which he was also given a fair chance to present his case. It would appear from the letter at page 40 of the record of appeal that the Appellant was very much alive to the fact that the charge, which the Respondent was facing, attracted the penalty of termination of employment but due to some mitigating factors, they imposed the penalty of demotion. This is notwithstanding the fact that the Appellant considered the charge to have been proved. The learned trial judge found that the allegations against the Appellant were not proved and he treated the documentary evidence presented to court as hearsay. In our view, this was a misdirection. The court is not an appellate forum for the Disciplinary Committee. The record of appeal clearly shows that the procedure in the grievance and procedure code was followed before termination of the Respondent’s employment. The penalty imposed though not stipulated by the code, was in view of some mitigating circumstances and was less onerous than what was stipulated by,the code for the charge which was found to have been proved. We therefore allow this appeal and set aside the judgment of the court below. * » Costs to the Appellant to be taxed in default of agreement. DEPUTY CHIEF JUSTICE I. M. C. Mambilima JUDGE SUPREME COURT 7