Allen Tendai Mate v Mabiza Resources Limited (2021/HPIR/667) [2024] ZMHC 186 (10 April 2024)

• IN THE HIGH COURT FOR ZAMBIA 2021/HPIR/667 INDUSTRIAL RELATIONS DIVISION HOLDEN AT LUSAKA (CIVIL JURISDICTION) I OSAKI\ BETWEEN: ALLEN TENDAI MATE COMPLAINANT AND MABIZA RESOURCES LIMITED RESPONDENT CORAM: Hon. E. MWANSA Esq JUDGE APPEARANCES: For the Complainant : Mr. A. Tembo • Messrs Tembo Ngulube and Associates For the Respondents : Mr, E. S. Lllanda - Messrs Mulenga Mundashi Legal Practitioners JUDGMENT Authorities Referred to l. Industrial and Labour Relations Act Chapter 269 of the Laws of Zambia. 2. The Employment Code Act No. 3 of 2019. 3. Care International Zambia Llmited-V- Misheck Tembo SCZ Judgment No. 56 o/2018. Jl 4. Chimanga Changa Limited -V- Stephen Chipango Ngombe (2010) l ZR, 208. 5. Supabets Sports Betting -V- Batuke Ka.limukwa Selected Judgment No. 27 of 2019. 1.0 INTRODUCTION 1.1. The Complainant was employed by the Respondent on 3 1st July, 2018 as Engineering and Safety Manager on a four (04) year contract. 1.2. Following a forensic review of the Respondent's select transactions conducted by Price Water House Coopers, the Complainant was suspended on 17th March, 2020 pending disciplinary hearing. 1.3. The Complainant was later charged with negligence of duty resulting in loss of company funds and gross dishonesty in relation to his decision to purchase a more expensive loader from Hitachi Construction machinery Zambia, as against the one from Barlo\vorld Equipment Zambia Limited. 1.4. The charges also reilected some loss ofUS$257,000.00 for materials and services which the Complainant allegedly failed to account for during the construction of a canteen at the Respondents mine. 1.5. A disciplinary hearing was commenced and the J2 Complainant heard, and he ivas dismissed. An appeal was not successful. 1.6. He then came to Court seeking the following reliefs: 1.6.1. The dismissal was both wrongful and urifair; 1.6.2. Payment of 36 months' salary as damages for wrongful and unlawful dismissal; 1.6.3. Damages for mental anguish and distress; 1.6.4. Damages for loss of value of the terminal benefits; l.6.5. Interest; l.6.6. Costs; and 1.6. 7. Any other order the Court may deem fit. 1. 7. There ,vas an Answer filed by the Respondent that included a counterclaim. 1.8. In the counterclaim the Respondent prayed for the following: l .8. l. Damages for breach of contract; l.8.2. 1.8.3. Costs of purchasing the wheel loader from Hitachi a.mounting to US$168,412; instead from Barloworld of The costs of the poorly constructed and incomplete canteen, amounting to US$257,000. J3 l.8.4. Unauthorised contract with Wankumbwa Suppliers amounting to US$30,000. General and Contractors, 1.8.5. The sum of US$39,007 being the storage and engagement of West Indigo. 1.8.6. Further or other relief; and l.8. 7. Interest. 2.0 THE COMPLAINANT'S TESTIMONY 2.1. Most of the Complainants testimony and that of the Respondent is of common cause. I will therefore highlight Sections of evidence that appear to be at variance, and propose to get back when necessary. 2.2. The Complainant testified that the clause 3.4.5 with which he was charged was not in his code. According to him, this clause was for the Albidon Code not Mabiza. So the Albidon Code was not applicable to him. 2.3. That there was no evidence against the Complainant tabled at the disciplinary hearing. 2.4. Having said what I have (in 2.1) above, I propose to get into the Respondent's testimony. J4 3.0 RESPONDENT TESTIMONY 3.1. The Respondent called one ,:vitness. RW 1 Mr. Lloyd Moomba, a Safety, Health, Environment and Social Governance Deputy Head of Integrity. 3.2. In a material particular, the witness testified that around 2018 to 2019, the Respondent was facing Financial Challenges and there were unaccounted for loses of funds. So to establish what was going on, a forensic audit ,vas conducted. 3.3. Irregularities were detected and people cited in that report were suspended and charged. The Complainant was one of them. 3.4. He exculpated himself in line with the Disciplinary Code of 2014. But he was dismissed together with a Mr. Victor Sinkamba, Financial Controller and the General Manager. 3.5. The Complainant, who was heard after protesting and objecting to two Chairpersons, was tater dismissed on Gross Negligence resulting, in loss of company funds as well as Gross Dishonest resulting in loss of company funds. 3.6. The Appeal was not favourable to the Complainant. JS 3.7. The witness testified that there were attempts to sneak in the 2019 code by Belinda who had been suspended from work, for having signed only the cover of this 2019 code which had not been revie,ved or approved. She is said to have been charged for fraudulent act relating to this 2019 code. 3.8. RWI told this Court that at the time Belinda and others were backdating this code, he (RWl) was in charge of Reviews. And the General Manager who signed with Belinda had at the time, ceased to be General Manager. Hence the Fraudulent Act. 3.9. Under cross examination, RWl stated that he never saw the architectural drawing for the canteen. He also did not exhibit the money that went towards the canteen, in any ,vay. 3.10. As it is the work was not documented at all, and the Court is left at Bay. 4.0 THE RELIEFS 4.1. Wrongful and Unfair Dismissal: I have had the benefit of Final Submissions filed by each of the parties. I have enjoyed the same and I have considered them deeply. Thank you for the practice. J6 4.2. Guiding on the use of the terms "u;ron.gfur and "unfair' dismissal; the Supreme Court of Zambia, quoting Sprack John, in his book "Employment Law and Practice", 1st Edition, at page 117; stated in the case of Care International -V• Misheck Tembo SCJ No. 56 of2018 that: "Wrongful dismissal .......... Essentially is a dismissal which is contrary to the contract and its roots lie in the common law. The remedy is essentially limited to payment for a period........... (In contrast), unfair dismissal is dismissal contrary to statute................ Unfair dismissal is, therefore, usually a much more substantial right for the employee and the consequences for the employer of dismissing unfairly a.re usually much more serious than those which attend a wrongful dismissal." 4.3. The same learned author has written that: "It follows from the distinction between unfair and wrongful dismissal that a dismissal maybe: (a) Wrongful but not unfair; (b) Unfair but not wrongful; J7 (c) Unfair and wrongful; (d} Lawful, in the sense that it is neither unfair nor wrongful "(P 117). 4.4. In a nutshell, there is a plethora of authorities to guide on these terms and how they should be used 1n assisting to resolve such problems. The case of Caroline Tom.atda Daka -V• Zambia National Commercial Bank, Superbet Sports Betting -V• Batuke Kaltmukwa SCJ No. 27 of 2019, Wilson Masauso Zulu -V• Avondale Housing Project are but only examples of such many authorities. 4.5. In the case of Caroline Tomaida Daka, Matibini J, as he then was stated: "Unlike wrongful dismissal, unfair dismtssal has its origin in statutory law, it ts a creature of statute. The primary goal of statute law in this regard is the promotion of fair labour practices". 4.6. In Wilson Masauso Zulu, the Supreme Court of Zambia, while examining a claim under a similar head had to look at the reasons for dismissal and determine whether or not that action that led to dismissal was legislated upon to be termed unfair. JS 4.7. In our jurisdiction, only a few instances have been legislated, \vhere unfair dismissal will be justified. These are found under Sections 43,3, 53(1), 52(3), and 5591) of the Employment Code Act No. 3 of 2019. 4.8. Further Sections 5 and 95(2) of the now repealed Chapter 269 provided for unfair dismissal based on discrimination. Even then, it does not apply in our present case. 4.9. In casu, the Complainant has not shown that the Respondent breached any statutory law in the manner his employment contract was terminated. 4.10. There is evidence that the Respondent investigated the issues at hand, and that there are good reasons for dismissing the Complainant. In 'LM22' the letter of dismissal we find the following: "You have been found guilty of the above charge in that you dishonestly represented that Hitachi was a cheaper option for the supply of the wheel loader equipment notwithstanding the fact that you had a quote from Caterpillar (CAT} which was lower. I did not find your explanation t.o J9 the effect that you made a mistake, satisfactory0 • 4 .11. The words quoted above appear to summarise, which they do, overwhelming evidence of the quotations for the wheel loader from Caterpillar and from Hitachi. 4.12. Indeed, the Complainant, answering one of the questions put to him stated "On page 30 of my bundle I state that I made an error on the price". 4.13. Clearly, with such an admission, the dismissal cannot be said to have been based on unsubstantiated grounds. 4.14. It follows therefore that since I have not been alerted to any law protecting the employment of the Complainant that has been breached, and further that there were good reasons for charging him with Gross dishonesty with which he \Vas later dismissed, I cannot find any other evidence going to prove unfair dismissal. 4.15. The claim under this head should fail as it now does. 4.16. On wrongful dismissal, I have already stated the considerations as guided by a number of authorities. Being whether, the dismissal was in breach of the JlO contractual provisions relating to the employment in question. 4. 17. And I note here that the Complainant was aggrieved that he was suspended on a non-existent code. But I found under clause 3.4.5 of the Respondent's Disciplinary Code for 2014 the prov1s1ons for suspension and layoff. 4.18. This is the code that the Complainant states, he was not aware of. I find evidence to the effect that he should have been aware of and actually given the code in question. I say so because of the following reasons: 4.18.1. At pages 66-84 of the Complainant's Bundle of Documents is the 2014 Disciplinary Code for Mabiza Resources Limited, which the Complainant alleges did not apply to him as it was for Albidon. This does not seem correct as the code clearly shows - Mabiza Resources Limited. 4.18.2. In the supplementary Bundle of Documents, we find an alleged Amended Disciplinary Code for 2019, for the Respondent. Its implementation date is 1st July, 2019. The Complainant ,:vas suspended from duty on 16th March, 2020. So it appears that this code could have been applicable to him. J 11 4.18.3. But then again the Respondent's witness Lloyd Moomba testifies that the Complainant was given the 2014 code at the time of his employment because it is a requirement and is part of the contract. Again, when he requested for it during the disciplinary hearing. The e-mail correspondence (exhibit LM12). On 30th April, 2020 is this e-mail, attaching the code. So then the Complainant cannot just say there was no attachment to the e-mail and stayed mute when, according to himself, he needed it so much. 4.19. I have no reason not to believe the Respondent when they state as they do with evidence as above, that the Complainant was availed the copy of the 2014 Disciplinaiy Code. 4.20. On the allegation that the 2019 Code exhibited in the Supplementary Bundle was the one effective, and it did not have clause 3.4.5 which provided for suspension. I wish to state that I have just put to rest that argument. 4.21. Even assuming that the clause 3.4.5 ·was not in the code and as such did not provide for suspension. The Complainant was paid his full salaries while on suspension and so he did not suffer any detriment. J12 . . , . Further the same 2019 code he alleges was applicable to him, still provided for the offence he was charged with and for which the punishment was summary dismissal. I fail to appreciate the argument. 4.22. That said, I would like to now set aside the allegation that the Complainant ,vas suspended on a non existent code 3.4.5. The code was infact what applied to him, and it provided for suspension. 4.23. There is evidence that the Complainant was charged under the 2014 Disciplinary Code. He was also able to exculpate himself {LM 15). He was heard and the minutes recorded (LM21). 4.24. I have not found any adverse comments of the composition of the committee that heard him. 4.25. That said, I am settled that the procedure adopted in the Disciplinary process regarding the Complainant herein ,vas Compliant v.11th the contract in question. As such, I see nothing wrongful in the dismissal. The relief under this head should consequently fail as it does. 4.26. Subsequently, the claim for damages for wrongful dismissal cannot find sustenance. J l 3 "' ' I • 4.27. Throughout the Complainant's testimony, there is nowhere I find a suggestion of evidence supporting the allegation that he suffered any mental anguish or distress. There is only his word for it, that falls short of the standard of proof required of him to access such an award. 4.28. Under cross examination, the Complainant stated that he had not produced any evidence for mental anguish. 4.29. He equally stated that he had no evidence for loss of value of terminal benefits. 4.30. In point of fact there is evidence on LM25, LM26 and LM27 to the effect that Terminal Benefits were paid. The principal amount was paid, so there is no loss of value of anything. 4.31. There is evidence in the Complainant's response in cross examination ·when he plainly acknowledged having been paid "all terminal benefits" but not gratuity since, as a manager, he was not entitled to it. And that if gratuity was paid to him he would gladly pay it back. 4.32. Still further on this claim, loss of value of any award is taken care of by the award of interest, which [ note, is also asked for. So the award of interest principally J14 '' . . . takes care of the loss in value of the awards. But there are no awards on any claim here and so interest cannot be given. 4.33. A further perusal of the record reveals absence of any evidence on which to justifiably deem any other relief in favour of the Complainant. 5.0 CONCLUSION 5.1. This suit has failed in toto. 6.0 THE RESPONDENT'S COUNTERCLAIM 6.1. Damages for breach of contract; 6.2. Costs of purchasing the wheel loader from Hitachi instead of from Barloworld amounting to USD 168,412; 6.3. Costs of the poorly constructed and incomplete canteen amounting to USD 257,000. 6.4. Unauthorised contract with Wankumbwa Suppliers and General Contractors amounting to USO 30,000; 6.5. The sum of USD 90,007 being the storage and demurrage fees in relation to the engagement of West Indigo; Jl5 ,t • • ., 6.6. Further and other relief; and 6. 7. Interest 6.8. The claims at 4.4. and 4.5. were abandoned at trial. Leaving only three (03) to consider. 6.9. Quickly, a counterclaim is actually a claim by the Respondent against the Complainant. If the Complainant had not been to Court earlier, the counterclaim would stand as a claim on its own. It \it/Ould therefore require that the Respondent in this case establishes each and every claim to the required standard of proof. 6.10. I will now propose to get into the specifics. 6.10.1. Damages for breach of contract 6.10.1.1. The only witness called by the Respondent was Lloyd Moomba, the same witness called to respond to the Complainant's Notice of Complaint. It is still in Order and proper but only if he had discussed the counterclaim. 6.10.1.2. Throughout his testimony, he only Jl6 addressed the Complaint. He was a typical Respondent and never a Claimant of anything. 6.10.1.3. There is no doubt that the Complainant's role was partly to help control expenditure by avoiding wastage of resources. But, apart from such statements there is no tangible evidence of Accounted for loses of funds. Further, he (Complainant) justified the expenses which were approved. He cannot therefore answer as an individual. These transactions were done by a team. 6.10.1.4. The allegation of US$257,000 for undocumented work at the canteen, starts at this figure and ends at this figure. There is no payment shown for such works to have ever existed. The evidence falls far short of displacing the burden of proof. What is worse is that the whole counterclaim is based on a draft of a report {LM2). Just a draft! 6.10.1.5. Since there's no other evidence to support the counterclaims the same fails in toto. 6.11. In short, both the Complainant's claims as well Jl7 as the Respondent's counterclaims have fallen short of the standard of proof required of them and as such, they both fail. 6.12. I make no Order as to costs. IRA. Jl8