Zambia Breweries Plc v Kingsley Silungwe (APPEAL NO. 44/2010) [2013] ZMSC 85 (2 May 2013)

J1 IN THE SUPREME COURT OF ZAMBIA APPEAL NO. 44/2010 HOLDEN AT KABWE (CIVIL JURISDICTION) BETWEEN: ZAMBIAN BREWERIES PLC APPELLANT AND KINGSLEY SILUNGWE RESPONDENT Coram: Chirwa, Ag. DCJ, Chibomba and Musonda, JJS On 9 th August, 2011 and on 2nd May 2013 For the Appellant: For the Respondent: Mr. A. Tembo of Messrs Tembo, Ngulube and Associates. Mr. M. Mutale of Messrs York Partners. JUDGEMENT Chibomba, JS, delivered the Judgment of the Court. • ~~ses referred to: 1. ZNPF vs Chirwa (1986) ZR 70 2. Zambezi Ranching Vs Lloyd Chewe (1999) SCZ Judgment No. 128 of 1999. 3. Post Office vs Fennell (1981) IR LR 4. Proctor vs British Gypsum Limited ( 1991) IRLR 7 5. Barclays Bank Limited vs Mando Chola and Ignatius Mubanga ( 1997) SJ No. 35 6. ZCCM vs Richard Kangwa and Others SCZ No. 25 of 2000 7. Phillip Mhango vs Dorothy Ngulube and Others (1983) Z. R. 61. 8. Attorney - General vs Richard Phiri ( 1988-89) ZR 121 9. Zambia Electricity Supply Corporation Limited vs Lubasi Muyambango (2006) ZR 10. Pamodzi Hotel vs Godwin Mbewe (1987) ZR 56 Other Materials referred to: 1. Deborah J. Lockton's Employment Law, second edition, page 206 J2 When we heard this appeal, Hon. Mr. Justice D. K. Chirwa sat with us. He has since retired. Therefore, this Judgment is by the majority. The Appellant appeals against the Judgment of the Industrial Relations Court in which the Court below held that the Respondent was wrongfully dismissed from employment and that he be given termination by Notice by payment of salary in lieu of notice. The history of this matter is that the Respondent was employed by the Appellant as Garage Manager on 1st November, 2005. He was later promoted to Distribution Manager (South). On 4 th May 2007, his employment was terminated for gross misconduct. Prior to his dismissal, the Respondent was charged for gross misconduct over the allegation that he had failed to disclose key information on the manner 1n which the Operations Department procedures were not followed and that he had signed off invoices for Keegy Limited which were far more than what the Appellant should have been charged for maintenance of their forklifts. The Respondent made a written exculpatory statement. He appeared before a Disciplinary hearing which found him liable J3 over the charge and not over his alleged confrontation with one , Jason Smith. His appeal to the Managing Director also failed. The Respondent then commenced an action in the Industrial Relations Court in which he claimed for an order that his purported dismissal from employment was unfair and unlawful and that as such, he was entitled to damages and costs. The Court below heard evidence from both parties and after analyzing the evidence, the Court below held that the Respondent was wrongfully dismissed from employment and awarded him damages. Dissatisfied with the decision of the Court below, the Appellant appealed to this Court advancing three grounds of appeal in the Memorandum of Appeal. These are-: "1. The trial Court erred both in law and fact when it held that it was unfair for the Respondent to charge the Complainant with dismissible offence whilst the other Superior was charged with a different offence and given a final warning, as it is contrary to the evidence on record. 2. The trial Court erred in law and fact when it held that the Appellant could have used the ordinary termination procedure or charged him J4 with same offence as his superior because the said superior never colluded to defraud the Appellant and hence the finding was a misapprehension of the evidence. 3. The trial Court erred in law by failing to address its mind to the charge which the Complainant was facing and by failing to make a finding as to whether or not same was proved." The learned Counsel for the Appellant, Mr. Tembo, relied on the Appellant's Heads of Argument filed herein. In support of ground 1, it was submitted that the Court below erred and misdirected itself when it made a finding of unfair dismissal. It was argued that the Respondent's immediate Superior, a Mr. Thole, played no part in the transaction that led to the Respondent's dismissal and the resignation of the Operations Director, a Mr. Mubanga. It was pointed out that the dismissal letter shows that the Respondent was dismissed for gross misconduct and that the Respondent's exculpatory statements and the charge against him, show that Mr. Thole was not part of the allegation against the Respondent. That the misconduct by the Respondent was based on the allegation that he had " ... failed to disclose key information on the JS .. manner in which Operations Department procedures were not followed as per company procedure and that he had signed off Invoices for Keegy Limited which were for more than Zambian Breweries should have been charged for maintenance of forklifts." (emphasis ours) It was contended that in his exculpatory statement, the Respondent did not implicate his immediate Superior, Mr. Thole, as he only mentioned him in connection with the conversation the Respondent had with him over some purportedly "high invoices" and not the one that led to his dismissal. That this can be seen from paragraph 3 of his exculpatory statement in which the Respondent stated that-: "As regard the Keegy Invoices in the 18 months I have been with Zambian Breweries to the best of my recollection, I have handled 3 invoices from Keegy Limited which I signed in the first place to merely indicate that I had received the invoices I did so only in the absence of my then Director, Chris Mubanga." It was submitted that 1n cross-examination, the Respondent stated that-: "Answer: It is an invoice from Keegy who were maintaining Zambian Breweries forklifts. I signed and checked the invoice and dated it. J6 Question: Where was Mr. Thole on this day when you checked this? Answer: I cannot recall but he was on duty. Question: Where was Operations Director? Answer: He was also on duty. The purpose of me checking was to confirm that jobs done were invoiced in December and Witnessed by job cards. Question: If Operations Director and Mr. Thole were around, why did you have to check this invoice? Answer: They were on duty but not in their offices. It was received by Operations Director's Secretary who referred It to me. Question: Was this part of your duty? Answer: Yes •.••...•..... '' It was contended that this shows that the Respondent signed off the invoice which had higher charges than the agreed amount and that he had no explanation. And that in view of this , the Court below had no basis for finding unfair dismissal. In support of ground 2 , it was submitted that the Court below went beyond its legal mandate. That the Appellant was not short of J7 options but that it decided to dismiss the Respondent for the offence that he had committed and that his Superior, Mr. Thole, played no part in the Respondent's gross misconduct which led to his dismissal. It was further argued that the Operations Director who signed the invoice in question together with the Respondent was forced to resign. Further, that the Appellant's witness, RWl , did not implicate Mr. Thole in the offence that led to the Respondent's dismissal. Therefore, that the Court below erred. In support of ground 3, it was submitted that the Court below erred when it indirectly found that there was an offence committed by the Respondent but failed to say so. That the Court below stated that:- "We are fortified by this case in our finding that the Complainant's 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 himself." It was submitted that since the Court below found that the Respondent was charged with a dismissible offence, it was immaterial if procedure was not followed. The case of Zambia National Provident Fund vs Chirwa 1 was cited as authority. It was argued that this case was cited in Zambezi Ranching vs Lloyd J8 Chewe 2 • Therefore , the Court below having found that the Respondent's dismissal was neither unfair nor unlawful , there was no justification for deeming the Respondent t o have been terminated by notice and to order payment in lieu of notice. It was pointed out that the Respondent's contract does not provide for termination by notice with entitlements. Therefore , that the Respondent is not entitled to any payment since the Court below found that his dismissal was fair and lawful a nd hence, the Judgment is not supported by findings of fact and the analysis of the law. On the other hand, in opposing this appeal, the learned Counsel for the Respondent, Mr. Mutale , also relied on the Respondent's Head of Arguments. In response to ground 1, it was argued that the Respondent's witness, RW 1, told the Court below in examination in chief that: "I charged the Complainant for not disclosing to Management the events that the forensic team had identified." J9 That RW 1, when asked 1n re-examination, responded as follows:- "Question: Do you recall what Chris Thole's charge related to? Answer: Non disclosure to Management of activities in the department. The specific charge was negligence." It was contended that this evidence shows clearly that the charges for the Respondent and Chris Thole were motivated by non disclosure of certain information to Management but that while the Respondent was charged with gross misconduct, Chris Thole was charged with negligence and that therein lay the inherent unfairness in the way the Respondent was treated. Therefore, that the Court below was on firm ground by redressing the injustice caused by different charges as was established in Barclays Bank Limited vs Mando Chola and Ignatius Mubanga5 in which this Court held, inter alia, that: "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." Therefore, that ground 1 should, fail as two individuals received different treatment when the charges were based on non- JlO disclosure to Management arising from similar facts. Further, that this ground should also fail on ground that an appeal to this Court from the decision of the Industrial Relations Court is only on a point of law or mixed law and facts and not on facts alone as was established in the Barclays Bank Zambia5 case. In response to ground 2, it was contended that the Court e below was on firm ground when it held that the Appellant could have used the ordinary termination procedure or charged the Respondent with the same offence as his immediate Supervisor as there was no need to find that the Respondent and Mr. Thole had colluded. That the Appellant only needed to identify that the charge on the Respondent and his Superior emanated from the same basis of failure to disclose to Management. It was submitted that the Appellant's witness testified that all staff in the Operations Department were party to defrauding the Appellant. Therefore, that the question here is not which option was ideal but more of treating employees fairly and just. Therefore , that the Court below was on firm ground when it found that it was unfair for Appellant to treat the Respondent's failure to disclose to Jll be gross misconduct while that for Christ Thole was treated as negligence. It was further submitted that Ground 2 s hould also fail as it is an appeal against a finding of fact and that this is contrary to the Barclays Bank Limited5 case. In response to ground 3 , it was submitted that the Court below did not err 1n law when it found that the Respondent's e dismissal was unfair on ground that if an offence had been committed , a similar offence ought not to be treated differently . It was argued that since the Industrial Relations Court is mandated to do substantial justice unfettered by "legalistic niceties", as was established is Zambia Consolidated Copper Mines v Richard Kangwa and Others 6 , the Court below was on firm ground when it made the awards that it deemed would render substantial justice to the Respondent. It was pointed out that the Respondent's contract of service states that the Respondent was entitled to th e allowances enumerated in the Heads of Arguments. Therefore , that there can be no question of the criteria to be used as the letter of appointment J12 provides sufficient basis as it stipulates the Respondent's entitlements. It was submitted that since the Respondent and Chris Thole's charges emanated from the same facts, they were in a similar manner and hence, the Court below was on firm ground when it stated that the duo ought to have been treated in a similar way and e hence, there was no misdirection on the part of the Court below. It was further, argued that it is trite that this Court will not reverse findings of fact made by a trial judge unless it is satisfied that the findings in question were either perverse or made in the absence of any relevant evidence or upon a misapprehension of facts or that they were findings which, on a proper view of the evidence, no trial Court acting correctly could reasonably make. The case of Phillip Mhango vs Dorothy Ngulube and Others 7 was cited in support. It was submitted that the Appellant has shown no such basis for this Court to interfere with the lower Court's decision. We were accordingly, urged to dismiss this appeal in its entirety with costs. J13 We have seriously considered this appeal together with the arguments advanced in the respective Heads of Argument, the authorities cited therein and the Judgment by the Court below. It is our considered view that this appeal raises one major question. This is whether in the circumstances of this case, the Respondent was wrongfully dismissed from employment by the Appellant on ground of his alleged failure to disclose to Management, key information on the manner in which the Operations Department procedures were not followed and his having signed off the Invoice to Keegy Limited which was more than what the Appellant should have been charged for maintenance of the forklifts. Ground one raises the question whether or not the Appellant acted unfairly by charging the Respondent with a dismissible offence while his superior was charged with a different offence and given a final warning. The Appellant's main contention is that this finding by the trial Court was contrary to the evidence on record as Mr. Thole did not play any part in the transaction that led to the Respondent's dismissal. And that the Respondent had no J14 explanation to the allegation that he signed off the Invoice that had higher charges than the agreed amount. The Respondent's position was that the Court below was on firm ground as the Respondent was treated differently when the charge arose from similar allegations as that of Mr. Thole. We have considered these arguments. Our considered view is that ground 1 has merit as the Court below went behind and acted as an Appellate or review tribunal. This is contrary to our numerous decisions. We therefore , take the same position that we did in Attorney-General vs Richard Phiri8 which we cited with approval in Zambia Electricity Supply Corporation Limited vs Lubasi Muyambango 9 where we stated that: "It is not the function of the 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 it was exercised properly." Further, 1n Pamodzi Hotel vs Godwin Mbewe 10 this Court stated that:- "...... the decision to dismiss cannot be questioned unless there is evidence of malice or if no reasonable person could form such an opinion." JlS In the current case, the evidence on record shows that the Respondent was charged and that he exculpated himself in writing and that he also appeared before a disciplinary hearing which recommended dismissal and then he also appealed to the Managing Director who upheld his dismissal. Therefore, the procedure was followed. There was, therefore, no basis for the Court below to find as it did. We are also of the firm view that the Respondent was properly charged with a dismissible offence. We have highlighted above portions of the evidence which clearly shows the reason why the Respondent was charged with a dismissible offence while his Superior, Mr. Thole , was charged with negligence and given a final warning. The Respondent is the one who signed off the Keegy Invoices which had more money than what the Appellant was supposed to pay. The evidence on record does not at all show that his Supervisor, Mr. Thole , played any role in the approval of the invoice in question which led to the Respondent's dismissal. The record on the other hand, shows that an audit was conducted which revealed misdemeanours. If the other employees are not charged or are ·• -. J16 given different charges, it does not exonerate the Respondent nor does it mean that he did not commit the offence. We, therefore, find merit in Ground 1 of this appeal as the Court below misdirected itself in law and in fact when it held that it was unfair for the Appellant to charge the Respondent with a dismissal offence while his Superior was charged with a different e offence and given a final warning as this is clearly contrary to the evidence on record. With respect to Ground 2, we believe that we have already dealt with most of the issues raised in this ground. We, however, wish to add that on the evidence on record, there is indeed, no evidence that shows that the Respondent's Superior, Mr. Thole, did collude with the Respondent to defraud the Appellant over the Keegy Invoice. The Respondent's own evidence does not at all implicate Mr. Thole. We have already cited this evidence above. Therefore, it was wrong for the Court below to hold that the Appellant ought to have used the ordinary termination procedure or charge the Respondent with the same offence as Mr. Thole when the J17 · • evidence did not implicate Mr. Thole. There is , therefore , merit in Ground 2 and we uphold it. With respect to ground 3 of this appeal, we b elieve we have also dealt with this ground above. We , however, wish to add that the Court below should have restricted itself to the charge the Respondent was facing instead of straying to other issues as the e evidence before it clearly shows that the Appellant did charge the Respondent with a dismissible offence. The record further shows that the Respondent did exculpate himself in writing over the charge and that he did appear before the disciplinary hearing which found him wanting over the Keegy Invoices. This is what led to his dismissal. The Respondent's appeal to the Managing Director was also unsuccessful. Had the Court below restricted itself to the charge against the Respondent, it could have come to the inescapable conclusion that the Respondent was properly charged and dismissed over the Keegy Invoice which he appr oved and that his immediate Superior, Mr. Thole, had nothing to do with this Invoice or its approval for payment. Therefore, Ground 3 of this appeal is also upheld as it has merit. ('j J18 The sum total is that this appeal has succee ded on all the three grounds of appeal. The Judgment by the Court below is hereby set aside in its entirety. In the circumstances of this case, we order that each party bears own costs. Appeal upheld. (RTD) D. K. Chirwa ACTING DEPUTY CHIEF JUSTICE f'·; I • I r-..... - -~---· • • • • • • • • • • • • • • • • • • • • • • • -~ -........-• - . • • ~ - ! . . .~ ! . . .· • • • P . Musonda-- -- • , - • ', l} . ' j\ -\ SUPREME COURT JUDGE H. Chib omba ~ -:- SUPREME COURT JUDGE - I