Conix Sunday Kalupa v Zambia Daily Mail Limited (Appeal No. 143 of 2020) [2022] ZMCA 232 (3 March 2022)

IN THE COURT OF APPEAL OF ZAMBIA HOLDEN AT LUSAKA (Civil Jurisdiction) Appeal No. 143 of 2020 BETWEEN: CONIX SUNDAY KALUPA Appellant AND ZAMBIA DAILY MAIL LIMITED Respondent Coram: Chishimba, Siavwapa and Sharpe-Phiri, JJA on 17th February 2022 and 3 rd March 2022 For the Appellant: Mr G. Pindani of Messrs Chonta, Musaila & Pindani Advocates For the Respondent: Mr S. K. Simwanza of Messrs Lungu Simwanza & Co JUDGMENT Sharpe-Phiri, JA, delivered the Judgment of the Court Legislation referred to: The Industrial and Labour Relations Act, Chapter 269 of the Laws of Zambia Cases re ferred to: 1. Attorney General v Marcus Kampumba A chiume (1983) ZR 1 2 . Konkola Copper Mines Pie v Aaron Chimfwembe and K ingstone Simbayi, Appeal No. 195/2013, SCZ/8/278/2013 3. Rees Mutakwa v ZESCO Limited, SCZ Appeal No. 166/2008 4. Care International Zambia Limited v Misheck Tembo SCZ Selected Judgment No. 56 of 2018, Appeal No. 57I2016 5. Konkola Copper Mines Pie v Hendrix Mulenga Chileshe, SCZ Appeal No. 94/2015 6. Attorney General v Richard Jackson Phiri (1988-89) ZR 121 7. George Davidson (2006) Chambers 21 s t Century D ictionary New Delhi India JI Other works: 1. W. C. Mwenda and C. Chu ngu, 2021: A Comprehensive Guid e to Employment Law in Zambia, the University of Zambia Press 1.0 INTRODUCTION 1.1 This is an appeal against a judgment delivered on 18t h March 2020 by Justice B. M. M. Mung'omba, Judge of the Industrial Division of the High Court, as she was then. By the said judgment, the Judge held that the Complainant (Appellant herein) had failed, on a balance of probabilities, to prove that his employment with the Respondent was unfairly or wrongfully terminated. The Judge accordingly dismissed the action in the lower court. 2.0 FACTUAL BACKGROUND 2.1 The brief background of the matter is that the Appellant was employed by the Respondent Company as a mechanical engineer on a permanent and pensionable basis. His job designation was later changed to production manager in charge of the printing section which position he held up to 6 th February 2013 when he was dismissed from employment for gross negligence. 2 .2 The Appellant's work environment was demanding as he worked with limited skilled maintenance and printing personnel in his Unit and most of the Respondent Company's J2 equipment was old having been acquired in the 1990s and needed replacement. The equipment also risked running obsolete due to ever advancing technology in the print industry and manufacturers stopping to produce spare parts for the machinery. 2.3 The Appellant engaged the Respondent on the need to procure modern printing equipment as he mostly relied on recycled parts from discarded equipment in South Africa to keep production running in his Unit. The Respondent also outsourced printing services from other entities whenever its equipment was reported to have malfunctioned or become in operational due to worn out parts. 2.4 As a result of constant assertions by the Appellant on the outdated state of printing equipment, the Respondent engaged an outside consultant to provide a technical report on the state of its equipment. 2.5 Following receipt of the said expert report, the Respondent suspended the Appellant and instituted disciplinary proceedings against him for gross negligence resulting in loss of funds or damage to equipment contrary to Clause 10.12 of the Grievance and Disciplinary Code; sabotage contrary to Clause 10.35 and providing false and misleading information to the Respondent. J3 2.6 Having heard the charges and responses from the Respondent, the Disciplinary Committee found the Appellant guilty of the offence of gross negligence. He was, by letter dated 6 th February 2013 , dismissed from employment but appealed to the Appeal body of the Respondent and then to the Managing Director of the Respondent. Both appeals were unsuccessful. 3.0 ACTION IN THE INDUSTRIAL RELATIONS COURT 3.1 Being dissatisfied with the termination of his employment, the Appellant issued a Notice of Complaint in the Industrial Relations Division of the High Court on 10th June 2013. The complaint was brought against the Respondent pursuant to Section 85(4) of Chapter 269 of the Laws of Zambia and a) b) claiming for the following reliefs, namely: Re-instatement; That he be deemed to have been retired, retrenched or declared redundant and be paid appropriate benefits; c) That he be paid damages for the wrongful and/ or unwarranted and/ or unfair dismissal; d) That he be paid the half salary arrears from 11th December 2012 up to 6 th February 2013; That he be paid damages for mental torture and anguish; e) D Any other relief the Court may deem fit; g) h) Interest on the awards or damages; and Costs. J4 3.2 The gist of the action was that the Respondent had dismissed the Appellant from employment on an allegation of Gross Negligence of duty resulting in loss of funds or damage pursuant to Clause 101.2 of the Disciplinary Code of the Respondent Company. That the Respondent had acted maliciously and in bad faith in dismissing him as there was no evidence of gross negligence on his part. 3.3 The Appellant also contended in the lower court that the Respondent had deviated from the particulars of the alleged offences laid out in the charge sheet and dismissed him on totally different particulars which he was not given an opportunity to exculpate himself. Further, that his dismissal from employment with the Respondent company was without lawful justification, wrongful, unreasonable, and unfair. 3.4 The Respondent filed an Answer on 4 th July 2013 opposing the action contending that the Appellant was dismissed from employment by letter dated 6 th February 2013 and not on 2 nd April 2013 as indicated. The Respondent argued that the dismissal was carried out in accordance with the conditions of service and the Disciplinary Code and Grievance Procedure under which the Appellant had agreed to work. 3.5 The Respondent averred that the Complainant was found guilty of gross negligence of duty resulting in loss of Company funds , contrary to Clause 10.12 of the Disciplinary Code and Grievance Procedure. The effect of this verdict under that JS procedure was summary dismissal of the employee from employment. The Respondent further contended that the summary dismissal was arrived at after a comprehensive but fair hearing of the disciplinary committee, in which rules of natural justice were strictly followed. 4.0 DECISION OF THE COURT BELOW 4.1 In determining the matter, Justice B. M. Mung'omba began by considering the question of whether the Complainant's dismissal from employment with the Respondent was indeed wrongful, unlawful, or unfair. She reviewed the facts of the case and found that there was no controversy that the Appellant had been formally charged by the Respondent with an offence, under its disciplinary code and that he had been taken through disciplinary proceedings and given an opportunity to be heard on the charges levelled against him. The Court also held that the disciplinary committee constituted to h ear the case against the Appellant had the requisite powers and invoked and exercised the correct procedure as empowered. 4.2 The Judge also found that the disciplinary committee found the Appellant guilty as charged and that two subsequent appeal bodies upheld this finding. Further, the lower Court stated that its duty was not to inquire into the fairness or reasonableness of the disciplinary proceedings but to ensure that procedures were followed. The Judge found that the rules of n atural justice were applied in this case and that there was no reason to fault the disciplinary committee as the dismissal was not unfair or wr on gful. Based on the foregoing, the Judge dismissed the action in the lower Court. 5.0 THE APPEAL 5. 1 Being dissatisfied with the judgment of the lower Court, the Appellant filed a Notice of Appeal and Memorandum of Appeal advancing four grounds of appeal namely that: i. That the Court below erred both in law and in fact at page J32 of the judgment by holding that the Disciplinary Committee invoked the correct disciplinary procedure and that they had valid powers which they validly exercised ignoring flaws which were in the disciplinary process and that there was no justifiable basis to support disciplinary measures. ii. That the Court below erred both in law and in fact at page J32 of the judgment by holding that the dismissal of the Appellant (Complainant in the lower Court) was not unfair or wrongful ignoring clear evidence that the reason(s) given for the dismissal were different from the particulars of the disciplinary charges levelled against the Appellant and for which he was not given a chance to exculpate himself. J7 iii. The Court below erred both in law and in fact by holding that the rules of natural justice were applied in the disciplinary process. iv. The Court below erred in law and in fact when it failed to address the Appellant's claim for damages for mental torture and anguish. 6.0 ARGUMENTS IN SUPPORT OF THE APPEAL 6.1 The Appellant filed heads of arguments in support of the appeal on 7 th August 2020 in which grounds 1 and 2 were argued together. It was submitted that the findings of fact in the lower Court were perverse as the trial Court assessed and evaluated the evidence erroneously. We were invited to have recourse to the case Attorney General vs Macus Kampumba Achiume where it was established that an appeal Court may only reverse findings of facts made by a trial Judge if such finding were perverse or determined without any relevant evidence. 6.2 The Appellant recited several other authorities on the same principle premised on the fact that the lower Court's decision did not recite or clearly state what specific substratum of facts the Respondent as employer acted upon in dismissing the Appellant for the offence of gross negligence of duty. J8 6.3 It was argued that the trial Court simply made sweeping or general statements without bringing out the basis for dismissing the Appellant from employment. The Appellant particularly singled out a portion of the lower Court's Judgment at page J32 which revealed such an erroneous finding. The said portion is reproduced here below: "What is key to note in case of where an employee has been dismissed is firstly whether the correct procedure was followed, secondly whether the disciplinary committee had powers and thirdly whether there was a substratum of facts to support the disciplinary measure. It is clear from the authorities that our duty as a Court is not to sit as Court of Appeal. Our role is limited to finding out if there was a substratum of facts on which the employer acted. Reverting to the case at hand and applying the principles highlighted in the preceding paragraphs we find that the facts before us reveal a substratum of facts on which the employer had acted on. The Disciplinary Committee found the complainant guilty of certain offences and furnished reasons. It is not within our purview to interpose ourselves and review what the disciplinary committee did. J9 On our part, we are satisfied that they invoked the correct disciplinary procedure, they had powers which they validly exercised. We cannot start reviewing the proceedings to inquire into whether they were fair or reasonable. We find the rules of natural justice were applied. We do not see any basis for us to hold that the disciplinary committee erred. We find and hold that the dismissal of the complainant was not unfair or wrongful. The complainant has thus failed to prove his case on a balance of probabilities." 6.4 The Appellant a rgued that the Respondent 's witness, RW4 conceded that the reasons given in th e charge form were very different from those in the letter of dismissal and that the issue of lack of maintenance plans of equipment was n ever r aised in the Charge Form. The Appellant further r elied on the case of Care International Zambia Limited vs Misheck Tembo wh ere the Supreme Court held that: "Wrongful dismissal ... essentially is a dismissal which is contrary to the contract and its roots lie in the common law. The remedy is usually limited to payment for the notice period ... (in contrast), unfair dismissal is therefore usually a much more substantial right for the employee and the consequences for the employee and the consequences for the employer of dismissing unfai rly are usually much more serious than which attend a wrongful d ismissal." 6.5 The Appellant went on to argue that there was no justification for invoking and conducting the disciplinary proceedings against the Appellant, adding that the Committee dismissed the Appellant for reasons he was never given an opportunity to be heard on. The Appellant submitted that he should be entitled to an award of thirty-six (36) month's salary as damages for the unfair and/ or wrongful dismissal as was established in the principles espoused in the case of Konkola Copper Mines Pie vs Aaron Chimfwembe and Kingstone S imbayi. 7 .0 ARGUMENTS OPPOSING THE APPEAL 7 .1 The Respondent's heads of argument opposing the appeal were filed on 7 th September 2020. In the said arguments, the Respondent argued grounds 1 and 2 together and indicated that they adopted the trial Court's reasoning as contained at pages J23 to J3 l of the Judgment thereof. 7.2 The Respondent argued that the Appellant was being selective in the application of evidence tendered before the lower Court, arguing that the evidence of Lutato Kenneth Nyendwa shown at page 313, line 5 to 15 of the Record of Appeal showed that J I I the Appellant misled the senior management of the Respondent Company into believing that the image setter could not be repaired. 7.3 It was added that the core issue, as shown by the evidence at page 314 of the Record of Appeal, was that the Respondent ended up outsourcing printing services on account of the Appellant's failure to repair the image setter as he insisted it was obsolete. It was also argued that the evidence at page 315 of the said Record showed that Mr Christopher Judge managed to repair the image setter at a cost of ZMW160.00 compared to the sum of ZMW457,000 that the Respondent had earlier spent on outsourcing printing services at the instance of the Appellant. 7.4 The Respondent concluded by submitting that if the Appellant had advised that the image setter could be repaired cost effectively, his employment would not have been terminated. They relied on the case of Attorney General vs Richard Jackson Phiri wh ere the Supreme Court held that: "Once the correct procedures have been followed, the only question which can arise for consideration of the Court, based on the facts of the case, wou ld be whether there were in fact established to support d isciplinary measures s i nce any exercise of powers will be regarded as bad if there is no substratum of facts to support the same" J 12 7.5 On account of the foregoing, the Respondent, urged the Court to uphold the dismissal of the Appellant. 8.0 DECISION OF THIS COURT 8.1 The appeal was heard on 17th February 2022. Mr D. Pindani appeared for the Appellant while the Respondent was represented by Mr F. K. Simwanza. Both Counsel relied on their respective arguments filed before Court. 8.2 Mr Pindani emphasized in arguing grounds 1 and 2 together that the lower Court did not specify the substratum of evidence to justify or merit the charge of gross negligence. He invited the Court to address its mind to the fact that the particulars in the Charge Form did not correspond to the reasons given for the dismissal of the Appellant. He also added that the engineer's expert report was in tandem with the Appellant's report to the Respondent on the status of the image setter, such that the Appellant could not be said to have acted grossly negligent. He insisted that the Appellant, having been cleared of the offence of giving false and misleading information to the Respondent, could not be dismissed for gross negligence. 8.3 The Respondent's Counsel, Mr Simwanza, maintained that the written arguments before Court had addressed all the issues adequately and elected to rely on the same . Jl 3 8.4 We h ave reviewed the Record of App eal and carefully consider ed the arguments of the respective parties and the decision being impugned. The Appellant filed four grounds of appeal and we will address th e first 3 s imultaneou sly. 8.5 Under the first ground of appeal, the contention of the Appellant is that the trial Court erred in fact and in law when it disregarded the fact that the Disciplinary Committee had ignored the charges with which the Appellant was charged and arrived at different reasons from those in th e charge form to dismiss the Appellant. The contention of the Appellant was th at the rules of natural justice were not followed . He argued that h e was not heard on the grounds that the Disciplinary Committee utilized to arrive at its verdict. The Appellant further submitted that he had restricted his exculpation to the charges presented to him on the charge form . 8.6 Our review of the Judgement of the trial Court, shows the opinion of the Court at page J32, thereof which states that: "It is not within our purview to interpose ourselves and review what the disciplinary committee did. On our part we are satisfied that they invoked the correct disciplinary procedure, they had powers which they validly exercised. We cannot start reviewing the proceedings to inquire into whether they were fair or reasonable. J 14 We find the rules of natural justice were applied. We do not see any basis for us to hold that the disciplinary committee erred." 8.7 The trial Court then went on to dismiss the Appellant's complaint for being devoid of merit. 8.8 In the earlier analysis of the evidence before it, the trial Court m a de reference to the charge letter whose relevant contents were reproduced as below: "Section 11 Full details of charge and circumstances a) Between 1st July, 2012 and 30th September, 2012 you were requested by Senior Management to provide a status report on the Image Setter, specifically, in a Senior Management Meeting of 10th September, 2012, you were asked and you advised management that the ZDML Image Setter was obsolete and would therefore not be repaired. b) Further, in the same meeting you had admitted that the rollers which had been sent to South Africa had been received and you had made no attempt to fix them on the Image Setter and also made no attempt to report the fact that you received the said rollers to anyone in senior JIS management. The said rollers were taken for repairs to South Africa at great cost to the company. c) Further, you have been sending threatening messages to some employees to stop repairing the image setter. These are employees who had the interest of the company at heart and wanted to ensure that the image setter is repaired, and that it starts working so that the company can save money. This is tantamount to sabotage." 8.9 In p r ovid ing pr oper context to th e specific ch arges leveled again st the Appellant, we m ake reference to the charge form d ated 11 th Decem ber 20 12 a t page 96 of the Record of Appeal wh ich provides th e s pecific ch arges levelled against the Appellant a s : "You are hereby charged with the offence of: - 1. Gross negligence of duty resulting in loss of ZDML funds or damage to ZDML equipment clause 10.12 of the grievance and disciplinary code; 2 . Sabotage Clause 10.35 of the grievance and disciplinary code; 3. Providing false or misleading information for ZDML records clause 10.50 of the disciplinary records" J 16 8 . 10 The dismissal letter which was also quoted in part and con sidered by th e trial Court read in part as follows: "The Disciplinary Committee found you guilty for the following reasons: 1. The committee noted that you did not have maintenance plans for the pre-press and printing press equipment; 2. As a consequence of 1 above there was no regular maintenance of equipment. This meant that repairs were done as and when need arose; 3. Because of your failure to maintain the pre-press equipment, coupled with the failure to quickly repair the image setter, the company lost over K457 million in outsourcing services; 4. It was also established that you failed to provide an objective guidance and leadership to staff in your section. As a result, you could not coordinate with your subordinates to ensure that the image setter was expeditiously repaired to avoid loss of funds by the company in outstanding services." 8 . 11 A careful peru sal of t h e record shows th at from th e initial three ch arges levelled against the Appellant, th e second and third ch arges were dropped or were unsuccessfu l in the J 17 disciplinary committee hearing. The Appellant was only found guilty of the charge of gross negligence of duty. 8.12 A manifest consideration of the reasons furnished in arriving at the guilty verdict reveals that the Committee considered several aspects of the Appellant's behavior which led to the company suffering loss of funds in excess of K457 million in outsourcing services that should have been provided internally by the unit or department which the Appellant headed. 8.13 It is also clear that besides the exculpatory letter, the Appellant also attended a disciplinary hearing before the Disciplinary Committee of the Respondent. This is evident from ground (c) of the Notice of Complaint before the lower Court which is found at page 44 of the Record of Appeal. 8 .14 Following the Committee's decision, the Appellant was dismissed from employment for gross negligence of duty vide a letter addressed to him dated 6 th February 2013. He appealed against the said verdict but the Appeals Committee affirmed the decision of the Disciplinary Committee to dismiss the Appellant. He also made a further appeal to the Managing Director of the Respondent who also affirmed the decision of the disciplinary committee to dismiss the Appellant by letter dated 2 nd April 2013. Jl8 8.15 The Appellant contends that the rules of natural justice were not followed as the Respondent levelled charges against him in the charge form yet departed from the said charges during the disciplinary hearing. He stated further that the Respondent found him guilty of gross negligence of duty on a different set of facts which the Appellant claims he did not have an opportunity to exculpate himself on. 8 .16 In the book titled "A Comprehensive Guide to Employment Law in Zambia", the learned authors note at page 201 to 202, having reliance on the Supreme Court decision in the case of Konkola Copper Mines Pie vs Hendrix Mulenga Chileshe where it was established "that in relation to the charge letter, the court held that the particulars of the charge need to be sufficient to give the employee the opportunity to adequately respond". 8 .17 The learned authors went on to observe that if an employee is initially charged with one charge and the employer then changes such charge after investigations, an employee who exculpated h imself on the initial charge is not required to exculpate himself in relation to the substituted charge, if the two charges are similar. 8.18 The learned authors noted that this was an implied endorsement in the Supreme Court decision in the case of Rees Mutakwa vs ZESCO Limited that: ] 19 "The variation of the charge with which the employee was initially charged and the substitution of the charge on which he was dismissed is allowed where ingredients of the initial charge are the same as the subsequent charge". 8. 19 Given the foregoing precedence set by the Supreme Court on a similar issue as those raised under grounds 1 to 3 of the appeal, we see no reason to depart from the lower Court's decision. The disciplinary process that the Respondent was subjected to concerns the assessment of the allegation of gross negligence in the conduct of its business in the Printing Unit/Department headed by the Appellant. Its finding was that the Appellant was indeed culpable and made the Respondent succumb to losses in excess of K457 million Kwacha in outsourcing services which could have been provided interna lly under the Appellant's department had he acted in the best interests of the company at all times. 8.20 Given the foregoing, we are further fortified in our view by the decision of the Supreme Court in the case of Ndongo V Moses Mulyango, Roostico Banda, where it was held that: "An appellate 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 J I • misapprehension of the facts, or that they were findings which on a proper view of the evidence, no t rial Court acting correctly can reasonably make." 8.21 Given our affirmation of the lower Court's finding on the question of competency of the Disciplinary Committee and the attendant disciplinary hearing of the Appellant, it renders the consideration of the 4 th ground of appeal otiose and academic . For said reason, ground 4 of the appeal also fails. 9.0 CONCLUSION 9. 1 All in all, the appeal is wholly unsuccessful and all the grounds of appeal are dismissed accordingly. As this is a matter that originated in the Industrial Relations Division of the High Court, we order that each party bears their own costs of and incidental to the action. F . M. Chishimba COURT OF APPEAL JUDGE M. J . Siavwapa ~ r= N . A. Sharpe-Phiri COURT OF APPEAL JUDGE COURT OF APPEAL JUDGE J21