Clement Kabwe v Fifteen MCC Africa Construction and Trade Limited (COMP NO. IRC/ND/36/2017) [2017] ZMIC 1 (4 October 2017)

~ IN THE HIGH COURT FOR ZAMBIA COMP NO. IRC/ND/36/2017 AT THE NDOLA DISTRICT REGISTRY HOLDEN AT NDOLA (INDUSTRIAL/ LABO UR D IVISI O N) _ _;a::i::':.;;-e.:t-;.-;:-::i-:: .... , ... ,. _ ,·•·(,/:Y' .._,1...,l>I , , r , ·•\ .::_,.',./ .:.". lNrJt.l1;'"n~ j/,.: .. / ' J,_; __ ,i)1 ;1"\ ··,,.:; BETWEEN: CLEMENT KABWE ., q c)ij. IPLAINANT t AND FIFTEEN Mcc AFRICA coNsTRu·c-tloM."l5:,?1.-1t\,_ .. -·· -· ''«-. ·n~. RESPONDENT AND TRADE LIMITED BEFORE: Hon. Judge E. L. Musona For the Complainant: In person For the Respondent: Mr. C. Cha Ii of Messrs GM Legal Practitioners JUDGMENT Date: 4th October, 2017 CASES REFERED TO: 1. Makaya v Payless Supermarket (Pty) Ltd (2007) 1 BLR 521 2. Wilson Masauso Zulu v Avondale Housing Project Limited (1982) ZR 172 (SC), 3. Khalid Mohamed v Attorney General (1982) Z. R. 49 4. Galaunia Farms Limited v National Milling Corporation Lhi1ited (2004) ZR 1 SC J2 5. Zambia China Mulungushi Textiles( joint venture) Ltd v Gabriel Mwami SCZ Appeal Number 28 of 2003 6. Setrec Steel and Wood Processing and 2 others v Zambia National Commercial Bank Pie SCZ Appeal Number 39 of2007 7. Caroline Tomaidah Daka v. Zambia National Commercial Bank Pie (2012) Z. R 9 volume 3 8. Attorney General v. Richard Jackson Phiri (1988-1989) ZR 121 9. Swarp Spinning Mills v Sebastian Chileshe SCZ Judgment No. 6 of 2002 10. Munkansemu Nyirenda v Zambia Forestry and Forest Industries Corporation Limited Appeal No. 127/ 2013 OTHER WORKS REFERED: 1. Abbott, K; Pendlebury, N and Wardman, K: On Business Law, 8 th Edition, pgs 562- 2. Halsbury's Laws of Eng land , Volume 16, 4 th Edition, Paragraph 323 3. Halsbury's Laws of E ngland 4th Edition, Volume 40 November 2000 at page 375 paragraph 407 I I I I I I I I I I I I I J3 This Complaint was filed by Clement Kabwe. The Complaint was filed against Fifteen MCC Africa Construction and Trade Limited. I shall therefore refer to Clement Kabwe as the Complainant and to Fifteen MCC Africa Construction and Trade Limited as the Respondents which is what the parties to this action actual ly were. The Complainant's claim is for the following reliefs :- 1. Damages for unlawful, wrongful and unfair dismissa l 2. Damages for pain and suffering caused for no good reason 3. Interest 4. Costs The duty for thi s court is to ascertain whether or not the Complainant has proved his claims. In his evidence, the Complainant CW I told this court that he was employed by the Respondents .....,,, as a Dozer Operator in 2009. He was employed on contract for one year and after that one year contract, his contract was renewed for 2 years. When the 2 year contract expired, the Respondent then renewed it for 3 years from 26th June 2015 to 26th June, 2018. He told the cou1t that he only worked for I year 8 months under the 3 year contract. On 25 th February 2017, he was in the morning shift and when he knocked off, as he was trying to board a bus, a Safety Officer who was a Chinese national started sea rching his bag. He had spanners for his bicycle in the bag, and the safety officer demanded that he should surrender those spanners to him. He explained to the safety officer that the spann ers in hi s bag were used to fix his bicycle, as it gives him problems when riding and moving without the spanners meant risking being stranded along the way when going back home, but the safety officer insisted that he shou ld hand over the spanners to him. a rtc:c ·• J4 CW I told the court that he refused to give the spanners to the Chinese safety officer and the safety officer started obstructing him from boarding the bus, which led to him being left behind by the bus. He walked to the road side and managed to get a lift in an open van. He told the court that he reported for work in the afternoon shift the following day on the 26th of February, 20 17. He was told by his supervisor that the safety officer wanted to see him, he should therefore leave and return the following day. On 27 th February he was asked to go to the Human Resource Managers office with his spanners and the safety officer identified the spanners as th e ones he had seen on the 25 th of February, 2017. He to ld the court that the Respondent's management asked him to write a report on what exactly transpired on 25 th February, 20 17 and he wrote the report. A representative from the union was present \•Vhen he asked to explain what happened, after giving an explanation, he was given appeal fo rm s and a letter of dismissal. CW I was dismissed by the Respondent's for alleged dishonesty and stealing company property namely a container of fuel. He fu1ther told the court that he did not appeal agai nst the di smissal. In cross-examination CW! told the court that it was stand ard procedure at the Respondent Company for employees to declare their personal belongings at the security gate before entering the mine, however, on the material day he forgot to declare his spanners. ' The Respondents did not call any witnesses and their evidence on record is that the Complainant's contract of employment was lawfu lly terminated for theft of company property which constitutes a breach of the code of conduct and warrants dismissal. It was an express term of the contract that the Respondent had the ri ght to dismiss the Complainant from employment in an event of a breach of the Company's code of conduct. The Respondent's in their Affidavit in Support of Answer further deposed that the Complainant was afforded an opportunity to be heard and was paid his gratuity and leave days. Havi ng considered the evidence in this case, l must now consider the relief sought. _,,,..~· _____ __;,;__ ____________ ..:...:.....:__ ____ ..-::==--------- JS l. Damages for unlawful, wrongful and unfair dismissal This claim is loaded with three (3) segments. The three (3) segments are: (a) Unlawful dismissal (b) Wrongful dismissal (c) Unfair dismissal I shall consider these three segments seriatim. 1. Unlawful dism issal A dismissal of an employee is unlawful if it violates a statutory provision. By definition, according to the Learned Authors Abbott, I(; Pendlebu,y, N and Wardman, K: On Business Law, 8'" Edition, pgs 562-574:- , "wrongful and or unlawful dismissal, also called wrongful termination or unlawful discharge are both legal phrases, describing a situation in which an employee's contract of employment has been terminated by the employer in circumstances where the termination breaches one or more terms of the contract of employment, or a statute provision in employment law." The Complainant did not show which statutory provision was breached by the Respondent. The claim for unlawful dismissal therefore fails . ii. Wrongful di smissal Wrongful dismissal is a dismissal wh ich arises when th e employer has breached a term of the contract of employment when dismissing an employee. J6 Wrongful dismissal also arises when the allegation upon which the employee was dismissed was not proved against the employee. In employment law, these are the only two grounds which amount to the dismissal of an employee to be wrongful. The letter of summary dismissal by the Complainants which has been exhibited as "CK2" in the Complainant's Affidavit in Support of Notice of Complaint reads as follows:- "MR. CLEMEMT KABWE 27-FEBRUARY, 2017 Dear MR: KABWE, RE: SUMMARY DISMISSAL DUE TO DISHONESTY: STOLEN COMPANY PROPERTY (CONTAINER OF FUEL) lSMCC CODE Reference is made to the subject captioned above matter. Management wishes to inform you that your employment with 15MCC has been terminated due to the reason stated above and effectively 27 February, 2017. It is in this vein that Management has decided to terminate your employment contract as it cannot continue a work relationship with someone who is not reliable, honest and serious with his job." The reason for the Respondent's dismissal of the Complainant according to this letter is dishonesty which has been described as stealing of company property namely, a container offuel. Throughout the Complainant's testimony, the evidence that came out was that on the 25th of February, 2017, he went into the Respondent's mine with spanners he used to repair his bicycle which he used to ride before getting to bus stop to wait for the compan y bus. He did not declare the spanners at the Respondent's security gate before entering the mine on that material day, despite it being standard procedure for employees to declare their personal belongings at the gate before entering the mine. The Respondent's security officer a Chinese National upon searching the Complainant's bag, after knocking off from his shift, discovered the spanners and demanded that the Complainant should J7 hand-over the spanners to him, but the Complainant did not do so. On the 27th of February, 2017, the Re~pondent's asked the Complainant to write a repo1t explaining what transpired on the 25 th of February, 2017 and he wrote the report. Thereafter a hearing was held in the presence of a union representative. Nowhere in the evidence before court is there an allegation of a stolen container of fuel hence it is actually shocking that the Complainant was dismissed for allegedly stealing a container of fuel when the facts before this court relating to his dismissal all point to the issue of having spanners in his bag. In my considered view, the allegation of stealing company fuel upon which the Complainant was dismi ssed was not proved by the Respondent as it was fabricated and unsubstantiated. It is not logical that the events leading to the Complainant' s dismissal all relate to spanners found in his bag, only to be dismissed for theft of a container of fuel which is totally unrelated to the spanners in issue. l am persuaded by the case of !Vlakaya v Payless Supermarket (Pty) Ltd (2007) 1 BLR 521 , where it was stated that:- "The cou1t ought to determine ,,vhether there was any evidence to prove that the Appellant had indeed committed an offence for which he ought to have been dismissed" A complainant has to prove his or her claim in order to succeed. I am wel l guided by the cases of Wilson Masauso Zulu v Avondale Housing Project Limited (1982) ZR 172 (SC), Khalid Mohamed v Attorney General (1982) Z. R. 49 and Galaunia Farms Limited v National Milling Corporation Limited (2004) ZR 1 SC where it was held that:- "A plaintiff must prove his case and if he fails to do so, the mere failure of the opponents defence does not entitle him to Judgment." The Complainant in this matter has proved that his dismissal from employment by the Respondent was wrongful because the allegati on of stealing a container of fuel was not proved against him. J8 iii. Unfair dismissal Unfair dismissal relates to disciplinary procedure in dismissing the employee. If the disciplinary procedure is not followed, the dismissal amounts to unfair dismissal. In order for the dismissal to be fair, the employer must adhere to disciplinary procedures and the reason for the dismissal must be valid . According to Paragraph 323 of Halsbury's Laws of England, Volume 16, 4th Edition:- "In determining whether the dismissal of an employee was fair or unfair, it is for the employee to show: (1) What was the reason , or if there was more than one, the principle reason for the dismissa l, and (2) That it was a reason which: (a) related to the capability or qualifications of the employee for performing work of the kind which he was employed by the employer to do (b) related to the conduct of the employee . .. " The evidence on record shows that the exculpatory letter written by the Complainant was a statement explaining how spanners were found in his bag on the 25 1h of February 2017 by the safety officer, nowhere does it make mention of a container of fuel. If the charge that was proffered against the Complainant was theft of fuel, he would have exculpated himself relating to the same. According to Halsbu,y 's Laws of England 4th Edition, Volume 40 November 2000 at page 375 paragraph 407 the lea rned a uthors state that:- "When drawing up disciplinary procedures, employers should have regard to the requirements of natural justice. This means that workers should be informed in advance of any discip/ina,y I I I I I J9 hearing of the allegations that are being made against them together with the supporting evidence and be given an opportunity of chaL/enging the allegations before decisions are reached. Workers should be given the right of appeal against any decisions taken " • In the case of Zambia China Mulungushi Textiles( joint venture) Ltd v Gabriel Mwami scz appeal number 28 of 2003, the Supreme Court stated that:- "It is certainly desirable that an employee who will be affected by an adverse decision is given an opportunity to be heard." Further in the case of Setrec Steel and Wood Processing and 2 others v Zambia National Commercial Bank Pie SCZ appeal number 39 of 2007 the Supreme Court stated that:- "a decision on the merit is a decision arrived at after hearing both parties" In the case of Caroline Tomaidah Daka v. Zambia National Commercial Bank Pie (2012) Z. R 9 Volume 3, it was stated that:- "Disciplinary procedures are designed to ensure that the employee is given eve1J1 opportunity to :...., put right any conduct which is likely to be the subject of critical appraisal,· to this extent the object of the procedures is corrective rather than punitive" In the case of Attorney General v. Richard Jackson Phiri (1988-1989) ZR 121 it was stated that:- "Quite clearly, if there is no evidence to sustain charges leveled in disciplina,y proceedings, injustice would be visited upon the party concerned if th e court could not then review the validity of the exercise of such powers simply because th e disciplinmy authority went through the proper motions and followed th e correct procedures." --·- ·--- --·- -- - ····· . ----- -~- - -·-- ---~ ---··-·- - ---- --- . --· --··-- JlO Based on the foregoing plethora of authorities, I am of the considered view that the Complainant was not charged for allegedly stealing a container of fuel as the hearing that was conducted related to him being found with spanners in his bag which he did not declare at the security gate. The exculpatory letter shows that he was explaining about those spanners and not a container of fuel. Therefore, procedure was not followed and the Complainant was not given the right to be heard. This is unfair dismissal. In the case of Swarp Spinning Mills v Sebastian Chileshe SCZ Judgment No. 6 of 2002, it was held that:- "The normal measure of damages applies and will usually relate to the applicable contractual length of notice or the notional reaso nable notice where the contract is silent. The normal measure is departed from where the termination may have been inflicted in a traumatic fashion which causes undue distress or mental suffering" Further, in the case of Munkansemu Nyirenda v Zambia Forestry and Forest Industries Corporation Limited Appeal No. 127/ 2013 it was held that:- "In our view, the circumstances of this case would justify a departure from the normal award of one months' salary in lieu of notice us damnges. The Appellant was dismissed on the basis ,,,. s of an offence which was not committed by him. In light of these circumstances, we find merit in the appeal and we award the Appellant damages for unlawful dismissal equivalent to his three months' salary including all allowances and perquisites" Based on the afore-cited cases, I am of the considered view that the Complainant was dismissed on the basis of an offence which was not proved against him and he was not even given an opportunity to answer to allegation of stealing a container of company fuel, as the events leading to his dismissal all point to the fact that the offence that was in issue was one of not declaring personal belongings namely spanners at the security gate. This is a proper case to depart from the normal Jl 1 measure of damages and I hereby award the Complainant damages for wrongful and unfair dismissal equivalent to twelve (12) months' salary including all allowances and perquisites. These damages shall attract interest at the short term deposit rate prevailing from the date of the Notice of Complaint to the date of Judgment and thereafter at the current Bank of Zambia lending rate until full payment. 2. Damages for pain and suffering for no good reason l The Complainant has not shown this court any pain he has suffered. I have gone through the entire evidence in this case and I have not seen any pain or suffering that the Complainant went through as he did not lead any evidence to attempt to suppo11 his claim. It is not automatic that once a claim against dismissal succeeds, then even the claim for damages for pain and suffering will succeed. The Complainant must lead evidence to prove the nature and extent of pain and suffering. I am well guided by the cases of Wilson Masauso Zulu v Avondale Housing Project Limited (1982) ZR 172 (SC), Khalid Mohamed v Attorney General (1982) Z. R. 49 and Galaunia Farms Limited v National Milling Corporation Limited (2004) ZR 1 SC. This claim is accordingly • dismissed . Costs of these proceedings go to the Complainant. Leave to appeal within 30 days from today is granted Delivered and signed at Ndola this 4th day of October, 2017 ' ' .. (.~ . : . . . _: ·,. · · •- .. , · ... ' . .. ; .. ·-..... .