Zambian Breweries Plc v Gilbert Kaunda (APPEAL No. 209/2021) [2023] ZMCA 249 (27 October 2023)

IN THE COURT OF APPEAL OF ZAMBIA HOLDEN AT LUSAKA APPEAL No. 209/2021 CAZ/08/128/2021 (Civil Jurisdiction) B E TW E E N: ZAMBIAN BREWERIES P AND 2 7 OCT 2023 APPELLANT GILBERT KAUNDA RESPONDENT CORAM: Kondolo, Majula and Chem.be, JJA On 21st September 2023 and 27th October 2023 For the Appellant : Mr. M. Kasofu of Tembo Ngulube & Associates For the Respondent : In Person JUDGMENT MAJULA JA, delivered the Judgment of the Court. Cases referred to: 1. Zambia Consolidated Copper Mines vs James Matale (1995-1997) ZR 157 2. Attorney General vs Marcus Kampumba Achiume (1983) ZR 1. 3. Barclays Bank of Zambia Plc vs Stephenson Zawinji Gondwe -CAZ Appeal No. 135 of 2016. 4. Samson Katende and Crosby Bernard vs NFC Mining Plc (2018) ZR 112 5. Prudence Rashai Chikatisha vs Stanbic Bank Zambia Limited -SCZ Appeal 95/2015. 6. Kansans hi Mining Plc vs Mathews Mwelwa -CAZ Appeal No. 103/ 2019. J2 7. KB Davies and Co (Zambia) Limited vs Andrew Masunu -SCZ Appeal 181/2006. 8. ZESCO vs Lubasi Muyambango (2006) ZR 22. 9. Mukansemu Shambweka Nyirenda (Mrs.) (suing as Administratrix of the estate of the late Elijah Nyirenda vs Zambia Forestry and Forest Industries Corporation Limited- SCZ Appeal No. 127/2013. 10. Zambia Telecommunications Limited vs Simon Mudenda -SCZ Appeal No 17/2006. 11. Superbets Sports Betting vs Batuke Kalimukwa -SCZ Selected Judgment No. 27/2019. 12. Engine Petroleum vs Willis Muhanga -SCZ Appeal No. 117 of 2016. 13. Amiran Limited vs Robert Bones -SCZ Appeal No. 42 of 2010. 14. Zambia National Commercial Bank vs Joseph Kangwa -SCZ Appeal No. 54 of 2008. Legislation referred to: 1. The Industrial Relations Court Rules, Chapter 269 of the Laws of Zambia Other authorities referred to: 1. Dr. Winnie Sithole Mwenda and Chanda Chungu, Comprehensive Guide to Employment Law in Zambia (2012), Lusaka: UNZA Press. 1.0 INTRODUCTION 1.1 This appeal emanates from a decision of the Industrial Relations Division of the High Court which was rendered by Judge Mumba dated 17th February, 2021. There was an employment relationship between Plc, the Zambian Breweries appellant herein, and the respondent. J3 1.2 Unhappy with the decision of the court below which found in favour of the respondent, the appellant launched this appeal. 2.0 BACKGROUND 2.1 The respondent, Gilbert Kaunda, was the complainant in the court below. The appellant was the respondent's employer from 1st September as a 2012 when he was employed Laboratory Technician on permanent and pensionable basis. He was later promoted to the rank of Brewery Microbiologist, Food and Safety Specialist and finally as Acting Quality Manager before he was summarily dismissed. 2.2 On 10th and 11th May, 2018, the appellant conducted a check-to-coach (C2C) audit at the Ndola Plant in various departments including the micro -laboratory which was managed by the respondent. The findings of the audit revealed some gaps in the respondent's laboratory. 2.3 In June, 2018, the appellant's Regional Quality Manager - Zambia and Botswana alleged that most of the samples which were processed in the respondent's micro laboratory were contaminated. The Quality Manager further that asserted some results were not being reported and the minimum mandatory sampling to, plan (MMSP) was not being adhered resulting in falsification of lab results. As a result of this state of affairs, the respondent was instructed to exculpate himself which he did in a letter dated 8th June, 2018. He was subsequently charged with the offence of gross negligence of J4 duty and gross misconduct on 12th June, 2018 and suspended from work. 2.4 A disciplinary hearing was held on 21st June, 2018 where he was given a chance to further exonerate himself. He was consequently found guilty and dismissed from employment on 4th July, 2018. 2.5 He appealed against the dismissal but his appeal was unsuccessful. He then graced the doors of the High Court alleging wrongful, unfair and unlawful dismissal. 2.6 In the court below, the appellant denied allegations of wrongful, unlawful and unfair dismissal. that it It contended complied with all the disciplinary processes outlined in its disciplinary code. 3.0 THE DECISION OF THE LOWER COURT 3.1 After reviewing the evidence that was before it, the trial court identified the issues for determina tion as being two-fold; firstly, whether the appellant complied with the disciplinary code and secondly, whether the charge levelled the against respondent which led to his dismissal were substantiated. 3.2 In addressing was of the the first issue, the learned Judge view that wrongful dismissal is concerned with how the dismissal was effected and not why. He found that the appellant in this case had complied with its laid down J5 procedures and rules of natural jultice. That the claim for wrongful and unlawful dismissal wa therefore not proved. 3. 3 In further analyzing the evidence, the lower court found as a fact that the samples that were alleged to have been contaminated were later found to be okay after they were taken to Lusaka for re-testing. The allegation that the respondent was falsifying results was thus not established. The lower court further found that the appellant's exhibited disciplinary code did not have a definition section for the two offences that the respondent was charged with. That the disciplinary code produced by the respondent defined 'gross negligence' as follows: I "Gross negligence means failure by an employee to carry out a normal part of his job which leads to loss of ! revenue, production, sales or any other loss relating to the efficiency or profitability of the company." 3.4 Based on the cited definition, the trial court held that the offence of gross negligence of duty was not substantiated against the respondent as there was no evidence to show that the appellant had lost revenue, production, sales or loss relating to the efficiency or profitability of the company. He ultimately awarded the respondent damages equivalent to 3 months of his last basic salary plus allowances with interest and costs. J6 4.0 GROUNDS OF APPEAL 4.1 Dissatisfied with the decision of the court below, the appellant appealed to this Court raising three grounds of appeal framed as follows: relied on the Disciplinary in the respondent's "1. The learned Judge erred in law and fact when he erroneously Code exhibited complaint in the appellant's that the respondent admitted the Disciplinary was the one in the appellant's and Grievance in support of and Grievance Code based on the fact that in cross-examination of the Disciplinary Bundle of Documents Code in use at the time of his dismissal Bundle of Documents. affidavit instead 2. The learned Judge erred in law when he interposed himself Tribunal been levelled substantiated trial Court. as an Appellate and went on to hold that the charges against the respondent Tribunal to the appellant's that had were not and before before the appellant's Tribunal in light of the well-established principle 3. The learned Judge erred in law when he awarded costs to the respondent on costs for matters before the Industrial Division of record shows no evidence offended Relations Rule 44 of the Industrial Rules." that the especially having the High Court for Zambia, of the appellant and Labour Relations 5.0 APPELLANT'S ARGUMENTS 5.1 On 10th February, 2021, the appellant filed its heads of arguments. Under grounds one and two, the appellant submitted that the trial court erred when it relied on the J7 respondent's Disciplinary and Grievance exhibited in the respondent's affidavit Code that was It was in support. contended that the court below ought to have relied upon the appellant's Disciplinary and Grievance Code that was produced in its bundle of documents. out Counsel pointed that the error by the Court is significant as it determines whether or not the offence of gross negligence of duty was defined and assigned a meaning. 5.2 Counsel asserted that the determination further resolves the issue of whether the court below could hold that the appellant did not lead evidence of loss of revenue, production or sales relating to the efficiency or profitability of the company. He stressed that the appellant's Disciplinary that Code provided all definitions and abbreviations are as applied in the Grievance That and Disciplinary Procedure ZHN-HUM-P-03. from the appellant's Disciplinary Code, there was no need to prove that the appellant had lost revenue, sales production, or suffered any loss relating to efficiency or profitability. 5.3 Counsel noted that the appellant further disputed the of the respondent's code in evidence in the court applicability below. It was contended court was therefore that the findings of fact by the lower not supported by the evidence and should therefore be set aside. 5.4 To support his argument, 'Comprehensive we were referred Guide to Employment Law to a passage from a book titled, in Zambia (2012),i by the learned authors Dr. Winnie Sithole J8 Mwenda and Chanda Chungu where they cite the case of Zambia Consolidated Copper Mines vs James Matale1 . In the said case, the Supreme Court held that: "It should be noted that question supported view of facts which cannot reasonably a finding of law when it is a finding which is not by the evidence or when it is one made on a of fact becomes a be entertained." 5.5 In respect of ground two, it was argued that the trial court interposed itself as an appellate tribunal when it held that the appellant ought to have led evidence of loss. The appellant further criticized the court below for allegedly ignoring evidence that there were other factors that led to the dismissal of the respondent. That this entailed that there was an unbalanced evaluation of evidence which should warrant this court to allow the appeal. Reliance was placed on the case of Attorney General vs Marcus Kampumba Achiume2 in which the Supreme Court held that: "An unbalanced evaluation the flaws of one side but not of the other are considered, is a misdirection make, and entitles which no trial court should reasonably the appeal court to interj of the evidence, where only ere." 5.6 It was further submitted that the findings of fact by the appellant's tribunal were not the subject of re-litigation by the lower court but that the role of the court was to find out if the tribunal had the power to do what was done, and if the power was properly exercised. For this proposition, the appellant's counsel referred us to a number of authorities including J9 Barclays Bank of Zambia Plc vs Stephenson Zawinji Gondwe3, Samson Katende and Crosby Bernard vs NFC Mining Plc4 and Prudence Rashai Chikatisha vs Stanbic Bank Zambia Limited5. 5.7 Pertaining to ground three, it was submitted that the lower court misdirected itself when it granted costs to the respondent in a matter that was dealt with by the Industrial Relations Division of the High Court. That there was no finding of either unreasonable delay, improper, vexatious or unnecessary steps taken on the part of the appellant as required by Rule 44( 1) of the Industrial Rules2 to warrant an award of costs. and Labour Our decision Relations of Kansanshi Mining Plc vs Mathews Mwelwa6 was cited as authority for guidance on the issue of costs as it relates to matters that are determined in the Industrial Relations Division of the High Court. 5.8 Counsel therefore prayed that the order for costs be set aside and the appeal be allowed. Arguments 6.0 Respondent's 6.1 In response to ground one, the respondent pointed out that there were two disciplinary codes that were produced in the court below, one from the appellant and the other from the respondent. That the one produced by the respondent did have a definition for 'gross negligence of duty' while the other code did not have a definition for the offence, but simply referred to a 'Grievance and Disciplinary ZNH - Procedure JlO HUM - P -03'. It was submitted that the same was never produced there by creating a lacuna in the evidence. The case of KB Davies and Co (Zambia) Limited vs Andrew Masunu 7 was called in aid. In the said case, it was held that where there is a lacuna in the evidence, the court should resolve that lacuna in favour of the party who was not responsible for the lacuna. 6.2 In relation to ground two, the respondent that submitted since the samples were found not to have been contaminated after re-testing, there was no basis upon which he could be said to have been grossly negligent. In other words, there were no facts to support his dismissal. 6.3 Moving on to ground three, the gist of the submission was that the order for costs was correct since the appellant charged the respondent on facts which were not supported by the ingredients of the offence. He beseeched the Court to dismiss the appeal. 7.0 Hearing of the Appeal 7.1 The parties wholly relied on the heads of argument that were filed in respect of their cases when the matter came up for hearing 2023. on 21st September, 8.0 Decision of the Court 8. 1 We have assiduously considered the record and the arguments by the parties in arriving at our decision. We propose to deal with the grounds of appeal seriatim. The Jll issues that we are being called upon to interrogate are firstly, which disciplinary code was applicable. Secondly, whether the court below had interposed itself contrary to established principles of law. Thirdly, the question of the infliction of costs on the appellant notwithstanding the principle on costs on matters relating to the Industrial Relations Division. 9.0 Wrong disciplinary code 9.1 In the first ground of appeal, the appellant is displeased with the use of the disciplinary and grievance code exhibited by the respondent in the as opposed to the one exhibited appellant's bundle of documents, notwithstanding the fact that the respondent admitted that the in cross examination appellant's disciplinary code was the one in use. 9.2 Indeed it is not in dispute that there were two disciplinary codes that were exhibited, one by the appellant and one by the respondent. We have had sight of both of them and have also examined the evidence on record. A careful analysis of the evidence reveals that the disciplinary code that was applicable to the respondent was that exhibited by the appellant which is exhibit 'GK4'. The witnesses namely Ernest Moonga on the part of the appellant and the respondent himself did concede that the disciplinary code that was applicable was that of the appellant. We therefore see no basis upon which the trial Judge decided to use the disciplinary code exhibited by the respondent given the evidence adduced. J12 9.3 We are thus compelled to set aside the finding that the disciplinary code applicable was 'GK5' as opposed to 'GK4'. This is in line with our mandate which is that we can only upset findings of fact when we are satisfied that the findings in question were either perverse or made in the absence of any relevant evidence or upon a misapprehension of the facts, or that they were findings which on a proper view of the evidence, no trial court acting correctly could reasonably make (see Wilson Masauso Zulu vs Avondale Housing Project Limited). 9. 4 In casu, the finding flies in the teeth of the evidence. Ground one is found to be meritorious and is accordingly upheld. 10.0 Court interposing itself 10.1 In the second ground of appeal, the appellant is disconsolate with the finding by the lower court that the charges that had been leveled against the respondent had been substantiated before the appellant's tribunal. In this vein, it has been argued that the lower court had interposed as an itself appellate tribunal. The hotly contested issue is whether or not the trial court did in fact interpose itself. 10.2 The starting point is to establish what the function of a court is, in relation to tribunals within domestic disciplinary procedures. There are a plethora of authorities in this regard. The cases of ZESCO vs Lubasi Muyambango8 , Barclays Bank Zambia Plc vs Stephenson Zawinji Gondwe3 and Jl3 Samson Katende and Crosby Bernard vs NFC Mining Plc4 ably articulate the principle of the that it is not the function court to interpose itself as an appellate tribunal within the domestic disciplinary procedures to review what others have done. The duty of the court is to examine if there was the necessary disciplinary power and if that power had been properly exercised. 1 0. 3 The law is therefore settled on the functions of the court. The question in this regard is whether the court below was on firm ground in finding that the allegations were unsubstantiated. After combing through the record, what emerges is that, the samples, the basis upon which the charge was anchored which were taken for re-testing in Lusaka, were found not to be contaminated. Evidence of this is from the appellant's own witness Ernest Moonga. At page 166 of the record of appeal, this witness agreed that the Masi samples that had been taken for re-analysis were not contaminated but went on to state that: to the charges that he was given there were "according other .findings dismissed." were these "other .findings?" The question that were done which led to him being that begs an answer is what 10 .4 The view we take is that the 'other findings' were not deployed before the court in order to substantiate the allegation leveled against the respondent. It is insufficient in our view to simply state that there were other findings without or considerations Jl4 providing a substratum of facts to support the disciplinary measures that were imposed on the respondent. 10.5 A dismissal must be based on substantiated or reasonable grounds. Where a valid reason exists that is substantiated, an employee's claim for unfair dismissal would have no legal leg to stand on. The principle of law that there is need to establish a substratum of facts to support the disciplinary against measures taken an employee was well expressed in the case of Mukansemu Shambweka Nyirenda (Mrs) (suing as Administratrix of the estate of the late Elijah Nyirenda) vs Zambia Forestry and Forest Industries Corporation Limited9. 10.6 In yet another illuminating case of Zambia Telecommunications Limited vs Simon Mudenda10 where the employer summarily dismissed an employee for causing loss to the company, the Supreme Court found case it to be a of unfair dismissal on account of the fact that it was established that the loss that was incurred was actually not caused by the employee but was due to the employer's weak practices in dealing with the administra tion of certain allowances. 10.7 In another insightful case of Superbets Sports Betting vs Batuke Kalimukwa11 , the court of last resort eloquently opined that: "The court is, in unfair dismissal, merits or substance of the dismissal obliged to consider the to determine J15 whether by relevant facts". the reason given for the dismissal is supported 10.8 We would like to associate ourselves with the foregoing and which we respectfully adopt. Having thoroughly the examined record, we have not been able to find a substratum of facts upon which the dismissal was predicated. that The evidence was led, was in relation to, the alleged contamination of the sample of Mosi which it was later found did not hold water by the appellant's own witness. There was no other material before the court to be considered as being relevant facts in support of the disciplinary measures. In the absence of the relevant facts, the trial Judge's finding cannot be criticized. 10. 9 We are of the well-considered view that the lower court was on firm ground as the appellant did not properly exercise its disciplinary power. Consequently, ground two is dismissed for want of merit. 11.0 Costs 11. 1 The frustration in the third ground of appeal stems from the award of costs in a matter that was adjudicated upon in the Industrial Relations Division of the High Court. We quickly of Rule 44 of the Industrial and turn to the provisions Labour Relations Rules and find it imperative to reproduce the same. It provides as follows: "(l) Where it appears been guilty vexations delay, of unreasonable or of taking improper, or unnecessary steps in any proceedings, or of to the Court that any person has J16 conduct, other unreasonable order for costs or expenses against him. the court may make an (1), the court (2) where an order is made under sub-rule may direct that the party against shall pay to any other party or expenses, as may be just, and in the last mentioned assess the sum to be paid, or may direct that it be an assessed appeal shall lie to the court." whom the order is made a lump sum by way of costs of the costs of expenses case may itself or such proportion from whose decision by the Registrar, 11.2 It is crystal clear from the above provision, that in order for the court to inflict an order for costs on a party, they must be guilty of unreasonable conduct or unreasonable delay, improper, vexatious or unnecessary steps in any proceedings, or of other unreasonable conduct. This principle has been articulated in a myriad of authorities. A leading case that comes to mind is that of Engen Petroleum vs Willis Muhanga12 where the Supreme Court pronounced on itself the unique position that the Industrial and Labour Division has in relation to a departure from the principle of costs following the event. 11.3 Other cases that we recall espousing the same principle include, Amiran Limited vs Robert Bones13 , and Zambia National Commercial Bank vs Joseph Kangwa14 • We had occasion to deal with the aspect of costs in the case of Kansanshi Mining Plc vs Mathews Mwe lwa.6 where we held as follows: J17 The long "In order for one to be awarded costs the onus falls on that the claim falls under one of the them to demonstrate exceptions. rule of and short is that the general under the event does not apply in matters costs follows of Relations the Industrial one is guilty or delay or taking improper vexatious unreasonable steps in any proceedings unnecessary conduct. unreasonable or of other Division "unless above and if not costs should not be This was the reasoning Zambia Limited vs Willis Muhanga & A claim for costs must thus fall in one of the instances highlighted awarded. Petroleum Jeremy Lumba5 where the Supreme Court set aside the order for costs awarded to the respondents that there was no basis to have awarded costs when the in respondents Rule 44(1)." did not fall into the criteria stipulated on the ground espoused in Engen 11.4 In light of the foregoing we assail the order of the lower court as we see no basis upon which it departed from the principle as articulated cases. in Rule 44 and the aforecited The record does not reveal any form of misconduct as envisaged under Rule 44. 11.5 We accordingly find merit in the third ground and uphold it. 12.0 Conclusion 12.1 In sum, we have found that the appellant has been successful on the first and third grounds of appeal but unsuccessful in the second ground for reasons articulated earlier in this judgment. J18 12_2 Notwithstanding the fact that there was success in the first and third ground, because of our holding in the second ground of appeal, we find the success in that ground does not aid the appellant for reasons that have been advanced in the judgment_ 12_3 The net effect is that the judgment of the lower court with respect to the damages awarded still stands_ Consequently, we uphold the award of damages as stated by the lower court_ 12 _ 4 This matter having emanated from the Industrial Relations Division of the High Court, we order that each party bears their own costs in this court and in the court below_ ----=-""==" = === =;.- - - --�- - - - - - - - - - - - - - - - - M_M_ Kondolo, COURT OF APPEAL JUDGE SC ·······�··············· COURT OF APPEAL JUDGE COURT OF APPEAL JUDGE B_M_ Majula y_ Chembe