Allan Kasazhi v G 4 Secure Solutions Limited (COMP. NO. IRD/SL/04/2017) [2017] ZMIC 6 (22 September 2017)

IN THE HIGH COURT FOR ZAMBIA COMP. NO. IRD/SL/04/2017 HOLDEN AT SOLWEZI (LABOUR JURISDICTION) BETWEEM ALLAN KASAZHI AND COMPLAINANT G 4 SECURE SOLUTIONS LIMITED RESPONDENT Before: The Honourable Mr. Justice D. Mulenga this 22ndday of September, 2017. For the Applicant In Person For the Respondent Mr. V. Musa, Human Resources Officer JUDGMENT Cases referred to: 1. Wilson Masautso Zulu v Avondale House Project (1982) Z R 172 2. Mary Musole v Borassus' Estates Limited IRC/Comp/303/204 (unreported) 3. Attorney General v Richard Jackson Phiri (1988-1989) Z R 121 The Cmnplainant presented his Notice of Complaint with an affidavit in support on 14 th March, 2017 on the ground which he states in form of a brief back ground to the said complaint. He avers that he was e1nployed Jl by the Respondent on 19th July, 2006 as a Security Guard under Kansanshi Mine Project. In the year 2014, the Con1plainant was pr01noted to the position of a full tilne supervisor, the Complainant accrued leave days from 2006 to 2014 when he was promoted and he was not paid for the said accrued leave days. The Respondent served the Complainant with a letter of suspension and letter charged him with an offence bordering on thefts which were taking place at FQMO Roads Sector, the matter which was under Police investigations, however, Police could conclude, the Complainant received a letter of dismissal on allegation of his continuance absconding from work. The Complainant further complains that he was not accorded an opportunity to be fully heard by the Respondent. For reasons aforesaid, the Complainant clain1s the following relief:- (a) Damages for unfair, wrongful and unlawful dis1nissal from employment (b) Compensation for defamation of character where the Complainant was defamed as a thief (c) An order that the Respondent pays for the accrued leave days (d) Costs and Interest on the su1n that be found due and payable (e) Any relief the Court may deem fit and just. J2 • The Complainant deposes through the aforesaid affidavit that he was en1ployed by the Respondent on 19111 July, 2006 on permanent basis as a Security Guard on a monthly salary of K415.00 and accumulated leave days. The Complainant was promoted to the position of supervisor in 2014 and on 11 111 October, 2016, he was handed a letter of suspension by the Respondent on allegations that he was responsible for the thefts which were happening at FQMO Roads Department at Solwezi. The letter of suspension is exhibit "KA 1" . The matter of thefts alluded to herein above, were under investigations by the Police whilst the said investigations were on-going, the Respondent dismissed the Complainant from employment on allegations of continuance absconding from work. The said dismissal was made whilst the Complainant was on suspension pending further notice from the Respondent. The letter of dismissal is exhibit "KA 2'. On 14th December, 2016, the Complainant was cleared by the Police from the allegations of theft and was given back a Television Set which was taken from his house during investigations on suspicion that it was a stolen item. Handing over Clearance Certificate is 1narked exhibit "KA 3'. The Complainant on 22nd Dece1nber, 2016, appealed against the disnlissal and the Respondent did not respond. J3 The Respondent did not file an Answer and affidavit in opposition to the Complainant's claims herein. However, it took part in the proceedings only to the extent that it was represented by one Mr. Musa, a Human Resources Officer. The gist of the Complainant's case as presented through his oral and affidavit evidence is that he accumulated leave days during the period he worked as Security Guard to the time when he was promoted to the position of full time supervisor, that is from 19th July, 2006 to gth September, 2014. The Complainant specifically told the Court that he had accu1nulated one hundred and fifty two (152) leave days. • The Complainant averred that in fact the Respondent had computed payment for accrued leaves but when they were just about to pay him it was discovered that there was an error on the name, Kasazhi was duplicated or repeated. The evidence of the Complainant on the other limb of claim is that on 10th October, 2016, he was on duty he was sent apparently by a superior a Mr. Bason, a Manager to go and pick Mechanic from his home in Highland Area. That was happening around midnight. The Complainant testified that in booking out to go and pick the Mechanic, he followed the Company procedure that when he reached the DRC Boom, he was searched, ad that he got into the Control Roon1 and reported whereupon the Controller confir111ed fro1n the said Manager about the assignment. The Complainant contends that the movements J4 he n1ade on the said date were all purely on company related mission and not personal progrmn. The Complainant was however surprised that on 11th October, 2016 around 05.00 hours he was apprehended by uniformed and armed Police officers. He was apprehended from the Respondent's office when he was preparing to knock off. He was detained and questioned on issues of his movement that night. The Complainant had his house searched thoroughly by the Police and in • the process one of the three Television sets was picked by the Police as at the time, the Complainant did not avail a receipt. The Complainant was detained at Solwezi Central Police and later released pending investigations. On 15 th October, 2016, the Complainant was handed a letter of suspension from work, the said letter exhibit "KA 1", is dated 11 th October, 2016 and states in part:- Dear Mr. Kasazhi, Re: Suspension - Yourself ) Following the allegations against you concerning the thefts that having (sic) been taking place at the Roads Sector, Management has decided to suspend you effective 1 JI" October, 2016. Kindly note that the suspension will only be lifted once all investigations have been fully completed after which you will be advised appropriately. Furthermore, the shifts from 1 l111 October, 201,6 to the time of suspension will be lifted shall not be paid to you. JS Your cooperation in the matter will be appreciated. Yours sincerely, (Signed) Dean Prinsioo Client Services Manager Kansanshi Mine Project On 10th November, 2016, the Con1plainant was charged by his immediate Supervisor Mutale Richard, with an offence of 'tarnishing the image of the ' Company'. On 17111 Nove1nber, 2016, Complainant was invited for a case hearing, on that day the hearing did not take place because the Human Resources Officer one Kalililo was unwell. On 22 nd November, 2016, the Complainant again went for his disciplinary case hearing, the same was supposed to be chaired by one Kenneth Siwo a Site Commander. The Complainant waited from 08.00 hours to 16.00 hours, Siwo did not show up. When Complainant phoned to find out whether Siwo was coming he was advised that he could not cmne as he was on transfer to N dola. Another disciplinary case hearing date was set for 30111 November, 2016 and it was agreed that the hearing was to take place at NAPSA Building. The Complainant testified that he went to NAPSAbuilding and called the Human Resources Officer, who informed him that he was not coming, but advised that he gets in touch with Assistant Manager, Maison Museka. The Complainant did not explain how the hearing failed on thel 7.th November, 2017, except that, on the same date he was called at the Police J6 Station and informed that investigations were almost concluded. On 14th Dcce1nber, 2016 the Police handed back the TV Set tothe Con1plainant and issued him with a handing over/Clearance Certificate. On the same 14 th December, 20,16, according to C01nplainant he received a phone call from the Human Resources Officer who asked him to go and see him. Upon Complainant seeing and availing the Human Resources Officer the Certificate of Clearance from the Police, C01nplainant was surprised when he was handed a letter of termination of employment on grounds of desertion from work. Complainant averred that he appealed against the dismissal. On 22 nd December, 2016 and on 1 s 1 January, 2017, he appeared before the Manager. He availed the Manager all the evidence against his dismissal. According to Complainant, the Manager was very surprised. The Complainant was advised to walk out of office as the Manager and the Human Resources Officer remained deliberating, later Complainant was called and informed that he was reinstated ,but would be transferred to Ndola. When Complainant asked for a reinstatement letter from the Human Resources Officer, he refused to give him on that day and the Complainant kept on reporting to him. However, he got tired of reporting to Human Resources Officer. After son1etime, the Human Resources Officer phoned him and advised him to stop reporting to him as he was going to inform him later. J7 The C01nplainant upon seeing that even his salary was not coming in, he went and reported the matter to the Labour Officer. The Co1nplainant also explained that when he was on suspension for three (3) n1onths he was getting a quarter salary as per agreement in the Contract of employment. The Complainant whilst on the stand produced in evidence the Contract of Employment marked as exhibit "C 1" and three payslips for the month of October, November and Dece1nber, 2016 collectively marked as exhibit II c 2' . In cross-examination by one V. Musa, the Human Resources Officer of the Respondent Company, Con1plainant told the Court that he was detained and investigated at the instance of the Respondent's Complaint to the Police. However, one of the investigators Mr. Sakatu works for Kansanshi Mines who is the client of the Respondent. Complainant, explained further in cross examination that he was clain1ing 152 leave days which he accrued during the period he worked as Security Guard to the time of promotion to full time supervisor. The Leave dues he was paid in December 2016 were for the period he served as supervisor. J8 C01nplainant maintained that it was the Respondent Company and not the Client that defan1ed hi1n by charging him with an offence which bordered on theft. On the facts of the case herein, it is clear that the Court is called upon to determine whether the Respondent's termination of the Complainant's en1ployment is unfair, wrongful or unlawful whether the Complainant is entitled to payment by the Respondent of one hundred and fifty two (152) leave days accrued between the period 19 th July, 2006 and 8th Septen1ber, 2014 when he worked as a Security Guard to promoti0n to the position of full time supervisor. Further the Con1plainant has claimed Compensation for defamation of character, therefore, this Court should determine whether the Complainant was defamed by the Respondent. It is imperative to point out at the outset that in accordance with the guidance given by the Supreme Court in the case of Wilson Masautso Zulu v Avondale House Project1 , that it is the duty of the Complainant herein to establish and prove his claim on the balanced of probabilities. The fact that the Respondent has not filed a defence, does not at law entitle the Complainant to a judgment in his favour. In this case, nevertheless, the Respondent did not file an Answer and affidavit in support in response to the Complainant's claims. The Respondent did not even call any oral testimony except for cross examining the Complainant. In views of the said position, this Court is reminded of the view expressed by this Court in the earlier case of Mary J9 Musole v Borassus' Estates Limited 2 • In that case Dr. W. S. Mwenda - J expressed a view and I concur, that:- Rendering a decision in a matter in which the Respondent has failed and/or neglected to put its case forward somewhat poses a difficulty to the Courts. However, in the interest of justice and the need for finality to litigation, it sometimes become necessary to conclude a matter in whichever way is appropriate if it seems unlikely that a defence to it will ever be raised. The above position notwithstanding, I shall proceed to analyse the evidence adduced by the Complainant and tested by cross-examination of ' the Respondent's representative. It is clear from the tenor of the suspension letter addressed to the Complainant dated 11 th October, 2016 (exhibit "KA 1") that the Complainant's suspension was to be lifted only once all investigations were fully completed upon which the Complainant was to be advised appropriately. Further that the Complainant was to be paid from 11 th October, 2016 to the time the suspension was to be lifted. Whereas the Complainant was on suspension pending investigations for which an outcome is a condition precedent to the lifting of his suspension from work, the Respondent proceeded to charge the Complainant with an offence of 'behaviour likely to tarnish the image of the company'. The C01nplainant steadily testified and his evidence was unshaken by cross-examination of how the Disciplinary case hearing was called by the Respondent and Co1nplainant attended, but the same failed to take off all at the instance of the Respondent. It is also noteworthy that when the Complainant was issued with the Certificate of Handover of the Television set and Clearance by the Zambia Police, on 14th December, 2016 and the Complainant presented the same to the Respondent because the investigation by the Police had cmne to an end. The Complainant was handed the letter dated 13th December, 2016 which is just a day before the issuance of the certificate of Handing over of the Television set to the Complainant. The said letter purported to terminate the Con1plainant's employment on the ground of desertion from work. The letter of termination of employment (exhibit "KA 2') addressed to the Complainant reads in part, "You have continued to abscond from work." It is inconceivable how the Complainant can be said to have absconded from work when the suspension pending investigations had not been lifted. I am 1nindful of the hold of the Supren1e Court in the case of Attorney General v Richard Jackson Phiri 3 that- We agree that once the correct procedure have been followed, the only question which can arise for consideration of the Court, based on the facts of the case, would be whether there were in fact facts established to support disciplinary measures since it is obvious that any exercise of Jll powers will be regarded as bad if thereis no substratum of facts to support the same. In the case in casu, as alluded to herein above, the Respondent did not act properly in the 111anner it proceeded to issue the letter of tennination of employment on the ground that the Complainant had absconded or deserted work. The said allegation has no substratu1n of facts to support the same. In fact there is uncontroverted evidence to the effect that the Complainant appealed against the said decision and when the Manager heard is appeal, he was reinstated but to be transferred to Ndola. However, the Respondent's Human Resources Officer failed or neglected to issue him with the letter of reinstatement. For reasons and evidence aforesaid I have come to the conclusion that the Complainant's termination of employment by the Respondent is wrongful and unfair. The Complainant therefore, has proved his case on the balance of probabilities as regards the claim for damages for wrongful and unfair dismissal from employ1nent. In assessing the award of damages for wrongful and unfair termination I take into account the fact that the Complainant gave the Respondent eleven (11) years of unbroken service. Further that it is not easy for a person in the position of the Complainant to find employment. I ward the Complainant twelve (12) Months salary as dmnages for wrongful and unfair termination of employment. J12 As regards the Complainant's claim for da1nages for defamation, I must state that the Complainant has not called enough evidence to establish the said claim. It should be appreciated that the Con1plainant was under probe by the State Police on suspicion that he was behind the spate of thefts which were committed in his e1nployer's client's area. Carrying out lawful investigations cannot be defamatory. This claim fails and it is dismissed for lack of merit. In respect of the Complainant's claim for payment of accrued leave days for the period 2006 to the year 2014, the Complaint has specifically claimed payment for one hundred and fifty-two (152) days. The C01nplainant told the Court that, the Respondent had in fact calculated his leave days dues and was in the process of paying the same except of the mistake whereby his name was duplicated. The Respondent has not strongly disputed this claim. I therefore, find and hold that the Complainant has proved this complaint on the balance of probabilities. The Respondent shall pay the Complainant for 152 accrued leave days as the same is an accrued right. The Complainant is awarded interest of the sum that shall be found to be payable at the lend Bank of Zambia interest rate from the date of the Notice of Complaint to date of payment. Costs shall be to the Complainant to be taxed in default of agreement. - Informed of Right of Appeal to the Court of Appeal within thirty (30) days fron1 the date hereof. Delivered at Solwezi this22ndclay of September, 2017. H~~~:. 1~~-~t1·~~ t: i1~i~-~i~ JUOGE I I