Chriss Hamweene v Titan Drilling Operations (Z) Limited (COMP. NO/ IRD/SL/05/2017) [2017] ZMIC 7 (11 September 2017)

- - - -- - - - - - - - - - -- ··- ---- - IN THE HIGH COURT FOR ZAMBIA COMP. NO/ IRD/SL/05/2017 INDUSTRIAL/LABOUR DIVISION HOLDEN AT SOLWEZI (LABOUR JURISDICTION) BETWEEN: CHRISS HAMWEENE COMPLAINANT AND TITAN DRILLING OPERATIONS (Z) LIMITED RESPONDENT Before: Hon. Judge D. Mu Ieng a this 11 th day of September, 2017. For the Applicant Mr. E. Mazyopa of Legal Board For the Respondent Mr. M. Mwachilenga of Messrs Mumba Malila & Partners JUDGMENT Cases referred to: 1. Zulu & Another v Barclays Bank Zambia Limited (2003) Z. R. 127 2. Zambia National Provident Fund v Yekweniya Mbiniwa Chirwa (1986) Z. R. 70 (SC) 3. Glynn v Keele University & Another (1971) 2 ALL E. R. 86 4, Chilanga Cement PLC V Kasote Singogo (2009) Z. R 122 5. Barclays Bank (Z) Limited v Chola & Mubanga (1995-1997) ZR 212 I ! l i l I I· I J1 Legislature referred to: 1. Section 5 (3) of the Employment (Amendment) Act, No. 15 of 2015,Chapter 268 of the Laws of Zambia Other Works referred to: 1. Clause 26.1 of the Contract of Employment 2. Clause 2.1 of the Probation Clause The Complainant herein presented his Notice of Complaint on 26 th March, 2017 with an affidavit in support. The Complainant's grounds , of Cmnplaint are that he was employed on fL-xed term contract of employn1ent by the Respondent first for six (6) months from 27th July, 2015, then for one year from 27'11 January, 2016 to January, 2017 whereupon he was given a two year contract to run fr01n 27111 January, 2017 to 26 th January, 2019 as a General Worker. However, the said contract of e1nployment was terminated by the Responden t on 24th March, 2017 on allegations that the C01nplainant threatened violence to his supervisor a Workshop Manager, failure to follow the laid down grievance procedure to air out his grievance against his supervisor, gross insubordination by talking rudely to the supervisor and justiJying his actions in a rude manner, total disrespectful of authority and perpetual late con1ing for work. The Complainant seeks the following relief: (a) An order and declaration that the purported termination of e1nploy111ent by the Respondent ainounts to dismissal and such disn1issal is unfair, wrongful and unlawful J2 - , (b) Da1nages for unfair, wrongful and unlawful termination of the contract (c) An order that the Respondent pays for leave accrued days (d) Costs and Interest on the sum to be found due and payable (e) Any other relief the Court may deem fit and just. The Complainant deposes through his affidavit in support of the Notice of Complaint that on 23 rd March, 2017 he was approached by his supervisor who accused him of reporting late for work. According to Complainant, when he tried to explain, the supervisor reported hin1 to the relevant authority that he had been rude to the said supervisor. The Complainant deposes and testified on the hearing of the matter that on the same day the 23 rd March, 2017, a meeting was convened with his supervisor one Steve, Union Representative, Vintura Mulyata the Human Resources Manager Gladys Muloongo and the Complainant. After s01ne discussions the Complainant was asked by the Hu1nan Resources Manager to go back home and return the following day the 24th March, 2017. When the Complainant returned for work on 24th March, 2017 he was handed a letter of termination of employment by the Hun1an Resources Manager. The said letter is exhibit "CM1" in the Con1plainant's affidavit in support of Notice of Complaint. Whereas the Complainant denies the allegations against him of threatening his supervisor, failure to follow laid down procedures, insubordination and being rude to the authority, the gist of his case is that the Respondent did not charge him with the said offences neither was he heard. J3 The Complainant was cross-examined on the issue of payment of accrued leave days, in reference to page 2 of the Respondent's Notice to Produce Documents. Complainant, admitted receipt of the amount of K445.20 appearing on the pay statement therein. It is also not in dispute as admitted by the Co1nplainant that whereas, he made a claim for payment of accrued leave days, he did not state the number of leave days he accrued. The Respondent opposes the Con1plaint and to that effect it filed an Affidavit in opposition to the Notice of Con1plaint, on 13 th April, 2017. The Respondent deposes through an affidavit in opposition sworn by one Gladys Muloongo, a Hun1an Resources Manager of the Respondent, that the C01nplainant's employment was tern1inated on 24 th March, 2017 due to none successful completion of three n1onths' probation period as per Clause 2 of the contract attested by Solwezi Labour Officer (exhibit "TDOL t1'). The Respondent contends that the termination of the Complainant's employment was as a result of his conduct on 23 rd March, 2017, when in the presence of the Union official and Human Resources Manager, he confessed to have threatened an expatriate supervisor and clearly stated that he will never accept to be supervised by an expatriate employee. The Respondent contends that such conduct ainounts to insubordination and gross 1nisconduct and undennining authority. The Respondent, further deposes that the Con1plainant was on several tin1es been verbally counselled, warned and cautioned on his 1nisconduct but did not change. J4 The Respondent argues that the tern1ination of Con1plainant's employ1nent is in line with the Law as enshrined under Sub-Section 3 of Section 5 of Employment Act (Amendment) Act No. 15 of 2015 Chapter 268 of the Laws of Zambia. The Respondent called two witnesses, the Hun1an Resources Manager Gladys Muloongo (hereinafter referred to as "RW1") and one Ventura Mulyata a Union Representative (also referred to hereinafter only as "RW2' ). The testimony of R\1Vl is that on 23 rd March, whilst at home, she received a phone call from the Vv orkshop Manager who is also the supervisor of the Con1plainant herein. The said Workshop Manager had a complaint to make that m orning against the Co1nplainant. RWI testified that when she reported for work that 1norning of 23 rd March, 2017, Steve Vinger (Complainant's Supervisor), in company of Ventura Mulyata (RW2) reported that the Complainant had again reported late for work, finding the workshop team in the middle of the Safety talk. The concern was that safety talk is very important in mining industry because, employees are warned of risks of the job they are to undertake on the material day. If there is a n ew 1nachine, they are educated about it and are advised of the safety clothing they are supposed to wear. l\tlissing such a 1neeting is unacceptable. J5 According to RWl, the Supervisor explained to her, that when he asked Cmnplainant about his late coming for work, Co111plainant responded rudely that it was too much to be followed up by the Supervisor and that if he had a position in the Union he would have found a way to flush hi1n out of the country. According to RWl, the Con1plainant admitted having uttered the words complained of against the Supervisor. Further, RWl told the Court that they as a company, had problems with the Complainant in his previous contracts, he never wanted to be supervised by an expatriate e111ployee . RWl explained that the Complainant was obliged to be supervised under Clause S of the Contract of E1nployment, therefore, as a Company it was decided that Complaint's contract be terminated. The letter of termination of contract exhibit "CM1" spells the reasons for termination of employment. Further, that the Complainant having been retained on 27th January, 2017 he had not completed his three (3) months' probation period on 23 rd March, 2017, when he committed the offences complained of by the Respondent. • In cross-examination RWl was referred to Clause 26.1 of the contract and she admitted that according to the said clause, an en1ployee who failed to meet satisfactory standards with regard to conduct, job performance, attendance or time keeping, disciplinary action should be taken and Company's disciplinary code, apply at all times. However, none application of the said clause on the Cmnplainant was because he had adn1itted threatening the Supervisor and that he was on probation, therefore, the Respondent opted to terminate his contract. I I I I I I I I J6 RWl admitted that there was no charge and or a written con1plaint which was raised by the Respondent against the Complainant. The testin1ony of RW2 is that on the n1aterial date 23 rd March, 2017 he was part of the tea1n, as Mechanic, which was having a Safety talk in the workshop when the Complainant with another worker one Kaimbo Mbimbi walked in late. However, after the Safety talk around 09.00 hours, on his way to the stores he met the Supervisor, one Steve who asked him to accompany hiln to the office of the Human Resources Manager. According to RW2, whilst at the Human Resources Manager's office, Steve and the Complainant, the Human Resources Manager (RWl) read a Complaint presented to her by the Supervisor, against the Complainant herein. • According to RW2 , the sup ervisor complained against the Con1plainant herein for late coming and threatening words. RW2 testified further that Complainant admitted having used threatening language by saying "if he was in the Union he was going to find a way to sort out the Supervisor by throwing him out of the country." Further that when RWl asked Complainant why he used such words, Co1nplainant said that he did not like the situation where son1eone could come out of this country only to come and cause trouble for him. Nevertheless, Complainant denied being disrespectful to his supervisor and that he had not committed any offence. J7 R\1\12, testified also that they did not finish the deliberations when RWl received another c01nplaint and she requested him to counsel C01nplainant. RW2, explained that the same day he counselled Con1plainant and advised hi1n to render an apology. However, when Con1plainant went to RWl to render an apology, he was told that she was busy and that the Supervisor had maintained that he was not willing to work with him, therefore, he was advised to go back home and return the fallowing day. • RW2, testified also that the disciplinary code was not used in terminating Con1plainant's contract of e1nployment because what Steve presented was a grievance. In cross-examination, R\i\12 confirmed his earlier testilnony that the 1neeting of 23 rd March 2017 was not concluded and was to continue the following day, though Complainant's contract of employment was tenninated. e Considering the facts and the evidence adduced before this Court, it is the considered view of this Court that, the issue for deternunation are:- (a) Whether in the light of the allegations levelled against the Complainant the Respondent was properly entitled to evoke Clause 2.1 of the Contract of employn1ent, tenninating Complainant's contract citing none successful cmnpletion of the probation period as a reason. (b) The status of the probation period in the light of a number of contracts of e1nployment being renewed or extended. JS (c) \,Vhether, there was need to formerly charge the Complainant with the alleged offences and be given an opportunity to be heard. Whereas at the close of receiving oral evidence, both Learned Counsel for the C01nplainant and Respondent inf orn1ed the Court that they were going to rely on the evidence on record, Learned Counsel for the Respondent filed written submissions on T 11 September, 2017 and the same shall be referred to where necessary . As regards the first issu e for determination, it is not in dispute that the termination of Complainant's e1nployment by the Respondent is on the basis of none successful c01npletion of the probation period. • It is also incontrovertible that the Complainant was accused by the Respondent to have committed some offences. The letter of termination of e1nployment dated 24111 March, 2017 (exhibit "CH1") reads in part: Dear Chriss Hamweene - ZAM00164 RE: TERMINATION OF EMPLOYMENT PROBATION PERIOD Refer the subject to your employment contract Clause 2 (2.1) page 2. As captioned above, the Company as keenly observed your conduct from the time you signed your new contract on 27 /01/27 and it has been described as undesirable and totally unacceptable. J9 The following behaviours have been observed and all of which have been acknowledged, confessed and confirmed by you as being nothing but the truth in the presence of the Union representative. (i) Threatening violence on your Supervisor being the Workshop Manager (ii) - That you wish to son him out of the country. You failed to support the reason for your sentiments. Failure to follow the laid down grievance procedure to air out your grievance against your Supervisor, the Union and the Human Resources Department are not aware of your claimed grievance (iii) Gross insubordination - talking rudely to the supervisor, always (iv) (v) justifying your actions in a rude manner. Total disrespectful of authority and your self- confession that you do not accept and recognise authority and supervision of a foreigner - an expatriate supervisor. Perpetual late coming for work - opting to use unauthorised bus that usually makes you report for work later than the rest when there is a company bus in place. The above allegations against the Complainant by the Respondent notwiths tanding, Learned Counsel for the Respondent has submitted on reliance on th e d ecision in the case of Zulu & Another v Barclays Bank Zambia Limited1, where it was held that:- The Respondent opted to use the Notice Clause in the Agreement, which was an option to them. The lower Court was of the view that the Respondent had sufficient material from which they could have given in terminating employment instead of a Notice Clause. This was a misdirection as we have already stated. The Respondent had a number of options open to them, they could have had the appellants prosecuted, put on disciplinary charges or opt to give them notice required under the Conditions of Service, or Pay the amount J10 in cash in lieu of notice. The Respondent opted for the last option of paying a month's salary in lieu of notice. Therefore, Learned Counsel for the Respondent argues that there is no n1andatory rule that every erring employee must be put on disciplinary charges. It is the considered view of this Court that the Case of Zulu & Another v Barclays Bank Zambia Limited is distinguishable from the case in casu, in that Clause 26.1 of the Contract of Employment between the Cmnpla~nant and the Respondent expressly provides that: Disciplinary action shall be taken when an employee fails to meet satisfactory standards with reqard to conduct, iob performance, attendance or time keeping and observance of all working rules and regulations. The Company's Disciplinary Code shall apply at all times. The Company Disciplinary Code can be accessed fro m the Human Resources Department on request and shall be construed as part of this contract. (The underlining is the Court's, for emphasis only) It is clear fr01n the above clause of the contract of employment that the Respondent, having made serious allegations of wrong doing against the Complainant, it made itself obligated to charge the Co1nplainant and give him an opportunity to exculpate himself as well as subjecting hiln to disciplinary hearing under the Respondent's Disciplinary Code or Procedure. J11 I I I I I I I I I I I I I I I I I I I I I I I I I It n1ust also, be born in mind that the holding in the case of Zulu & Another v Barclays Bank Zambia Limited, was made before the amendment of the Employment Act, Chapter 268 of the Laws of Zan1bia. Section 5 (3) of the Employment (Amendment) Act, 2015, provides; (3) The contract of service of an employee shall not be terminated unless there is a valid reason for the termination connected with the capacity, conduct of the employee or based on the operational requirements of the undertaking: (underling is the Court's and it is for emphasis only) The above provision of the law presupposes disciplinary hearing, against an employee, whose conduct is called in question by the employer, in order to satisfy the requiren1ent of the law that the 'reason for dismissal must be valid'. This Court is alive to the decision of the Supreme Court in the case of Zambia National Provident Fund v Yekweniya Mbiniwa Chirwa2 • In that case the Court in agreeing with the finding in the case of Glynn v Keele University & Another3 , where a student was disciplined by the Vice Chancellor of the University in total disr egard of the procedure laid down by the University Statute. I twas held that the rules of natural justice had not been complied with as the student was not afforded an opportunity to be heard before the decision was reached to in1pose a penalty on him. However, the Plaintiff suffered no injustice in that it was not disputed that he had committed the offence. J12 In the case in casu, however, it cannot be said on the facts that there is no dispute that the Co1nplainant connnitted the offences stated in the letter of termination of employment. It can be observed that whereas the Respondent's two witnesses testified that the Complainant had admitted the use of threatening language against his supervisor, the Complainant denied such utterances in Court. Moreover, there are 1nany n1ore offences alleged against the Complainant in the letter of ternunation which were not the subject of discussion in the meeting of 23rd March, 2017. Further it cannot be said at law that the said meeting had the capacity or that it constituted the jurisdiction of a disciplinary case hearing panel or committee. The m eeting of 23 rd i'viarch, 2017 cannot be said to be a disciplinary case hearing panel or c01nmittee because, the Human Resources Manager (R\,Vl) in the said position cannot chair the disciplinary committee meeting. Specifically, it is not known as to who 1nade the decision to tern1inate the Complainant's contract of employment. The Supervisor one Steve Vinger, was the Complainant or Prosecutor of the Complainant and could not be said to be a proper person to decide to terminate the Complainant's contract of employment. Not so much can be said of one Ventura Mulyata (RW2), despite being a Union official, was called at random for the said meeting. Whether or not the Complainant con1mitted the alleged offences, it is the considered view of this Court that it is not the function of the Court to decide or determine, it should have been the function of the disciplinary committee. I have therefore, come to an inescapable finding that the J13 I I I I I I I I I I I I I I C01nplainant should have been charged, gjven an opporturuty to exculpate hin1self and to be subjected to a case hearing. In respect of the argument that the Complainant's employn1ent contract was terminated by the Respondent's evocation of the probation clause, Clause 2.1 of the Contract states: 2.1 There will be an initial probation period of three (3) months (the probation period). During the probationary period, the employer may terminate this contract by giving 24 hours' written notice - giving reasons connected with the employee's capacity/performance, conduct and or operational requirements of the undertaking. At the expense of repetition, it is this Court's considered view that Clause 2.1 of the contract of employment must be read together with Clause 26.1 which obliges the Respondent to discipline an employee who fails to meet the satisfactory standards with regard to conduct, job performance, attendance or time keeping and observance of all work rules and regulations. I have no difficulty therefore to find that the Respondent failed to adhere to the terms and conditions of the contract of employn1ent signed with the Complainant. I have to comment by way of obiter dictum, that it is inconceivable to observe how the Respondent used the probationary clause against the Complainant. It is not in dispute that the Con1plainant was e1nployed on 2711i July, 2015 for six months, the saine was renewed or extended for one year contract from 2Th January, 2016 to 26 th January, 2017 whereupon the J14 I I I I I I I I I I I I I I Con1plainant was retained on a two year contract from 2 71h January, 2017 to 26th January, 2019. In the ordinary cause of events the Complainant would have been assessed during the first and second probation periods. It is therefore, undesirable or unacceptable, the n1anner the Respondent applied the probation period principle. As regards the complaint of wrongful, unfair and or unlawful termination of employment, on the totality of evidence and the facts herein, I am satisfied that the Respondent failed or disregarded to adhere to the terms and conditions of the contract of e1nployment, thereby wrongfully and unfairly terminated Complainant's contract of employn1ent. The Complainant has therefore, discharged the burden of proof on a balance of probabilities that hls employment was wrongfully and unfairly terminated. In ascertaining the measure of damages for wrongful and unfair termination of employment, I apply my mind to the holding of the Supren1e Court in the case of Chilanga Cement PLC V Kasote Singogo4, that the measure of damages is the period of Notice of termination. The same Court, however, held in the case of Barclay_s Bank (Z) Limited v Chola & Mubanga5, that the concept of substantial justice would be inconsistent with tying an award to the period of Notice under the contract of employment. The Industrial and Labour Relations Court is expected to be more liberal and generous in its awards, but it is also expected to take into account the principle of mitigation of damages suffered as a result of disn1issal. J15 I I I I I I I I I I I I I I I I I i Taking the above guidance of the Supreme Court in to consideration, I observe that the Complainant was e1nployed on the fixed contract of two years, as a General Worker in a mining related industry. At the time of hearing he remained unemployed and it is not easy to find employment in the Mines as a general worker. In the circumstances, I award the Cmnplainant six (6) months salary with taxable allowances as damages for wrongful and unfair termination of employ1nent. In respect of the Complainant's clai1n for payment of accrued leave days, the same cannot stand in the light of his ad1nission that the same was· paid b y the Respondent and there is no other evidence to prove to the contrary. This claim fails and it is dismissed for lack of merit. The Complainant is awarded interest at the current Bank Lending rate from the date of filling the Notice of Complaint until full payment. I make no order as to costs. Informed of Right of Appeal to the Court of Appeal within thirty (30) days from the date h ereof. Delivered at Solwezi this 11 thday of September, 2017 . ............... , . .......... ..... . .. Hon. Justice D. Mulenga JUDGE J16