Zambian Breweries v Silungwe (Appeal 44 of 2010) [2011] ZMSC 28 (29 November 2011)

IN THE SUPREME COURT OF ZAMBIA HOLDEN AT KABWE (Civil Jurisdiction) ’'’nifMpv APPEAL NO. 44/2010 ZAMBIAN BREWERIES PPELLANT VS KINGSLEY SILUNGWE RESPONDENT Coram: Chirwa, Ag. Chibomba andMusonda, On 6th October 2011 and on 25th November 2011 For the Appellants: For the Respondent: Mr. A. Ternbo of Messrs Tembo Ngulube Mr. M. Mutate of York Partners JUDGMENT Musonda, JS., delivered the Judgment of the Court. Cases Referred To:- 1. Zambia National Provident Fund Vs Chirwa (1986) ZR 70. 2. Zambezi Ranching Vs Lloyd Chewe (1999) SCZJ No. 128 of 1999. 3. Barclays Bank Limited Vs Nando Chola and Ignatius Mubanga (1997) SCJ35. 4. Zambia Consolidated Copper Mines Vs Richard Kangwa and Others (SCJ No. 25 of 2000). 5. Phillip Mhango Vs Dorothy Ngulube and Others (1983) ZR 61. 6. Zambia National Provident Fund Vs Chirwa (1986) ZR 70. 7. Zambezi Ranching Vs Lloyd Chewe (1999) SCZd No. 128. This is an appeal by Zambian Breweries PLC herein called the Respondent as they were in the court below. The Respondent was -Ji- sued Pursuant to Section 85(4) of the Industrial and Labour Relations Act Chapter 269 of the Laws of Zambia by the Respondent, Kingsley Silungwe whom we shall herein refer to as the complainant as he was in the court below. The complainant alleged that he was dismissed on the 4th day of May, 2007 for gross misconduct. He appeared before a disciplinary committee, but the proceedings were a sham because the decision to dismiss him had long been made following his confrontation with Mr. Jason Smith who had expressed his dislike for the complainant and had asked him to resign. The nature of the misconduct was that after the Audit by a Forensic Team, it was established that the complainant failed to disclose that Keegy Limited was overcharging the Respondents on hiring forklifts. I The complainant testified that there were no regulations in place to run the garage and transport which he later introduced. He was later promoted as Distribution Manager (South) from 1st December 2006. Though his responsibilities were not put in written, they were verbally communicated to him by his Operations Manager, a Mr. Thole. These included the management and -J 2- maintenance of the Respondent’s fleet of vehicles. The complainant confirmed all the invoices prior to payment to confirm that works or services had been performed. His superior, a Mr. Stanley Mupataye would in turn raise a job card and sign it to confirm that works had been done. The invoices came with schedules of work done, which the complainant would compare against the job card. On 18th April 2007, the complainant fell sick. He was given 7 days off and he took the sick note to his Superior, Mr, Thole. Mr. Thole referred him to Mr. Sekele the Operations Director who signed the sick note. He asked the complainant to finish off some reports and send them to his office. When he took the document to Mr. Sekele, he found him with Mr. Smith, one of the Directors of the parent company of the Respondent. Mr. Smith screamed at him and said that he hated the complainant because he was rude. Mr. Smith further said, he had worked for SAB Miller for 15 years and had never hated someone like he hated the complainant. When the complainant asked him why he hated him, Mr. Smith told him, that he never trusted the complainant as he had duplicated invoices for Keegy Limited. Mr. -J3- Smith went on that when he visited the plant with Mr. Sekele, what he saw was not pleasant. Mr. Smith asked complainant to resign and he would work a separation package or he would fire him, which would dent his career. Complainant asked Mr. Smith if he could exculpate himself and Mr. Smith agreed. Complainant said he only saw three Keegy invoices. The following day, 19th April 2007 the complainant went back to the office and wrote a memo to the Director of Human Resources about the incident and copied the memo to Mr. Sekele Operations Director and to his Supervisor, Mr. Thole. The following day, he was called by the Director of Human Resources who was with Mr. Sekele. Mr. Sekele apologized. Thereafter, he handed him a letter * containing a charge of misconduct. He was handed a letter alleging the flouting Operations Department procedures and signing off inflated invoices for Keegy Limited for the maintenance of forklifts. The complainant exculpated himself in writing on 20th April 2007. He stated that he had only handled three invoices from Keegy Limited, which he had signed to indicate that the invoices had been received. He did so in the absence of the Director, Mr. -J4- Chris Mubanga. On 24th April, 2007, he was formally charged with gross misconduct. He appeared before a Hearing Committee which found him culpable and dismissed him. He unsuccessfully appealed to the Managing Director. In cross examination, the complainant testified that he signed and checked the invoice on page 7 of the Respondent’s Bundle of Documents to confirm that jobs were done in December and witnessed by job cards. He signed the invoices in default as both his supervisor, Mr. Thole and Operations Director, Mr. Mubanga were out of office, so the invoices were referred to him. The labour charge on document 7 was K24 million. He explained in detail the machines serviced and charges as shown on pages 13 to 17 and page 6 of the Respondent’s Bundle of Documents. The complainant testified that he approved the invoices for Keegy Limited without knowing or reading what the terms of the contract between Keegy and the Respondent were. He felt that the Respondents were paying too much to Keegy and these sentiments were expressed in a letter to his superiors. -J5- The complainant said he did not know why Mr. Smith came to Zambia, but that sometime back, he was audited on fuel, not forklifts and he was not aware of the forensic audit till he got the letter requesting him to exculpate himself. In re-examination, he testified that the document on page 7 of Respondent’s bundle was a tax invoice to the Respondent from Keegy Limited dated 27th December 2006. It was approved by Mr. Chris Mubanga, the Operations Director and the complainant endorsed it. This was the case for the complainant. Mr. Ezekiel Chisenga Sekele was the Respondent’s only defence witness. He testified that the Respondent was dismissed after the Respondent carried out an extensive forensic audit in the complainant’s department, the operations department. According to the witness, there were high losses in operations for sometime. The audit began towards end of 2006 till beginning of 2007. Further that at the end of the forensic audit, the then operations Director, Mr. Mubanga, was made to resign. The witness became the new Operations Director. The witness noted that major challenges were in the management of fuel costs and -J 6- forklifts. Management had paid more than it should have and that it was clear to him that there was no way the former Operations Director would have been doing everything by himself without the involvement of managers. As a result, the complainant was charged with gross misconduct which was a result of him not disclosing to senior management the items identified by the forensic audit and not managing the forklifts properly resulting in management paying more than it should have. The witness told the lower court that the complainant, during the hearing told the committee that forklifts were not his responsibility and that he had only signed three invoices from Keegy Limited, the company that was maintaining the forklifts. It was the witness’s assertion that as Distribution Manager, the complainant ✓ was in-charge of forklifts. He had signed the invoice of 29th December 2006 as 'checked’, meaning that he had approved as correct the invoice as presented. According to the witness, the contract with Keegy stated that the costs the Respondent should have been paying as labour was -J7- fixed at Twenty Million Kwacha (K20,000,000.00) per month for service of forklifts and Two Hundred and Fifty Thousand Kwacha (K250,000.00) and (c) spares issued for forklifts. On the invoice of 29th December 2006, the total labour was beyond the Twenty Million Kwacha (K20,000,000.00), sundries at Two Million Four Hundred Thousand Kwacha (K2,400,000.00) parts Ninety Six Million Seven Hundred and Forty Eight Thousand Two Hundred and Ninety Four Kwacha Twenty Five Ngwee (K96,748,294.25). The sundries amounting to Two Million Four Hundred Thousand Kwacha (K2,400,000.00) were not in the contract. The complainant’s documents on pages 12 to 17 in the complainant’s bundle were a surprise. The documents were different from the one on page 7 of Respondent’s bundle which was signed by complainant and the then Director of Operations and date stamped which features were not on complainant’s documents. The complainant got the documents from Keegy Limited proving that there was a close relationship between Keegy Limited and the operations department. The defence witness told the court that the complainant appeared before a tribunal, which found him -J8- culpable and he was dismissed. He unsuccessfully appealed to the Managing Director. He admitted that a Mr. Thole who was the complainant’s senior was charged and given a final warning because of his area of work and he had worked longer than the complainant. The witness denied that the Four Million Kwacha (K4,000,000.00) extra in the invoice was for 16 machines which were serviced at Two Hundred and Fifty Thousand (K250,000.00) per machine. He confirmed that the altercation between Mr. Smith and the complainant was before the complainant was charged. He informed the court that Mr. Smith was an employee of SAB Miller, which was the holding company of the Respondent. For the appellant, Mr. Tembo, filed four grounds of Appeal. The first ground as argued by Mr. Tembo, was that the court below erred in both law and fact when it held that it was unfair to charge the complainant with a dismissible offence whilst the other superior officer was charged with a different offence and given a final warning, as this was not supported by the evidence on record. Mr. Tembo reproduced the charge and the exculpatory statement to J 9- buttress the point that the functions of the complainant and his superiors were different. On Ground two, Mr. Tembo argued that the court below erred in law and fact when it held that the appellant could have used the ordinary termination procedure or charged him with the same offence as his superiors because the said superior colluded to defraud the appellant. This finding, it was argued, was perverse to the evidence. The Respondent superior, Mr. Christopher Thole played no part in the “gross misconduct” which resulted in the complainant’s dismissal. The Operations Director who signed the questionable invoices with the Respondent was forced to resign. The two guilty parties had left the Respondent’s organization. The document at page 120 of the Record of Appeal shows the 'fraudulent’ or 'overcharged invoices with the complainant’s signature. In Ground three, it was argued that the court below erred in law by failing to address its mind to the charge which the complainant was facing and by failure to make a finding as to whether or not the same was proved. The trial court indirectly -J 10- found that there was an offence committed by the Respondent but failed to say so. The court at J12 said: “We are fortified by this case in our finding that the complainant9s dismissal cannot be said to have been unfair and against the rules of natural justice. We have noted already that he was heard on both charges. He appeared before a tribunal and exculpated himself9 Mr. Tembo, submitted that the complainant was charged with a dismissible offence, it is immaterial if procedure was not followed our decisions in Zambia National Provident Fund Vs ChirwaT and Zambezi Ranching Vs Lloyd Chewed were relied on as having stated the law with regard to dismissals which are not in strict compliance with the procedure. Mr. Tembo went on, that the lower court, having found that the dismissal was neither unfair nor unlawful, had no justification to deem the Respondent as having been terminated by notice and accordingly be paid in lieu of Notice as provided by his contract. -j 11- Mr. Mutale, in response to Ground one, submitted that appellant’s witness stated that: “I charged the complainant for not disclosing to management the events that the forensic team had indentified” In re-examination the witness said: “Non disclosure to management of activities in the department. The charge was negligence" He argued that for the foregoing, it was quite clear that the charging of the Respondent and Chris Thole was motivated by the non-disclosure of both individuals of certain information to management whereas the Respondent was charged with gross misconduct. Chris Thole was charged with negligence. Therein lay the inherent unfairness in the way the Respondent was treated. The case of Barclays Bank Limited Vs Ignatius Mubanga and Mando Cholaf3) was cited where we said: “In the process of doing substantial Justice, there is nothing in the Act to stop the Industrial Relations -J 12- Court from delving behind or into the reasons given for the termination in order to redress any real injustices discovered" In response the second ground of appeal, Mr. Mutale argued that the lower court was on firm ground when it held that the Appellant could have used the ordinaiy termination procedure. There was no need to find that there was collusion between the Respondent and his superior. All what was needed is to establish that the charge the Respondent was facing and his superior arose out of the same facts. The lower court was therefore on firm ground to hold that the Respondent’s dismissal was unfair as he was treated differently from his superior. In response to ground three Mr. Mutale urged us to take notice that the Industrial Relations Court is a court of “substantial Justice” unfettered by legal niceties. He cited our decision in Zambia Consolidated Copper Mines Vs Richard Kangwa and Others^ for that proposition. The court did therefore not err when it awarded the Respondent damages including car allowance, cell phone and medical cover. I J13- We were urged not to reverse the findings of fact of the lower court on appeal and we were referred to Phillip Mhanqo Vs Dorothy Ngulube and Others^. We have considered the grounds of appeal and the response thereto. The complainant in the court below testified that, he confirmed all invoices prior to payment to confirm that the works or services invoiced were performed. The invoices came with schedules of work done which the complainant would compare against the job card and sign if work was confirmed to have been done (see page 7 of the record of appeal). In cross-examination, the complainant testified that he signed and checked the invoice on page 7 of the Respondent’s Bundle of Documents to confirm that jobs done were invoiced in December and witnessed by job cards. Further, that both his superior Mr. Thole and the Operations Director, Mr. Mubanga, were on duty but he signed the invoices because they were referred to him as the duo were not in the offices (see page 9 of the record of appeal). It was the complainant’s testimony that he approved the invoices for Keegy without knowing or reading what the terms of the -J 14- contract between Keegy and the Respondent were. He further said that he felt that the Respondent was paying too much to Keegy and these sentiments were expressed in a letter to his Superiors. See page 9 of the record. In our view, there was evidence the complainant admitted in the court below, which admission was acknowledged in the lower court’s judgment, that it was his primary responsibility to check the invoices before they could be passed for payment. To hold that the primary responsibility of ensuring that work was done was co­ shared was a misdirection on the evidence. To put it simply, payments cannot be made if there was no primary authorization from complainant. In cross-examination he denies that it was his primary responsibility to sign invoices, he admits signing invoices on page 7 of the Respondent’s bundle to confirm that the jobs were done, because Mr. Thole, his supervisor and Mr. Mubanga, the Director of Operations, were absent from their offices. He admitted before the lower court that he approved the invoices for Keegy without -J 15- knowing or reading the terms of the contract between Keegy and the Respondent were. It was a misdirection to hold the complainant’s testimony as credible despite the highlighted contradictions and also to hold that the primaiy responsibility of signing invoices was shared with his superiors, as that flies in the teeth of his testimony in the lower court, which was reflected in the lower court’s judgment as we have quoted from the lower court’s judgment. To approve invoices without knowing the terms of the contract was recklessness amounting to the facilitation of fraud, which was ‘gross misconduct’ as this led to the company losing money. The lower court ought to have found that the complainant, bearing the primary responsibility of approving invoices, shouldered a heavier burden than his superiors who bore secondary responsibility. The tenor of our judgments in Zambia National Provident Fund Vs Chirwaf and Zambezi Ranching Vs Lloyd Chewed, is that employers should not be tied to technical niceties in disciplining a worker who has committed a dismissible offence as was in this case. We agree with Mr. Tembo that there was no -J 16- discrimination. The result is that the three grounds of appeal are allowed. Costs, in the court below and in this court are to the appellant who was Respondent in the court below to be taxed in default of agreement. D. K. Chirwa DEPUTY CHIEF JUSTICE H. Chibomba SUPREME COURT JUDGE P. Musonda SUPREME COURT JUDGE -J17-