Daka v Zambia Consolidated Copper Mines Ltd (Appeal 12 of 2004) [2005] ZMSC 15 (23 September 2005)

IN THE SUPREME COURT OF ZAMBIA HOLDEN AT NDOLA (CVIL JURISDICTION) BETWEEN: APPEAL NO 12 OF 2004 CHARLES PEARSON DAKA Appellant and ZAMBIA CONSOLIDATED COPPER MINES LIMITED Respondent Coram: Chirwa, Chibesakunda, JS and Munthali, Ag. JS on 2nd March 2004 and 23rd September 2005. For the Appellant: Dr J Soko, Josias & Partners For the Respondent: Mr P Chamutangi, Legal Counsel, ZCCM JUDGMENT Chirwa, JS delivered the judgment of the Court: The appellant was employed by the respondent from 14th April 1971 and his services were terminated on 14th May 1996. He was working at the Mufulira Division of the respondent. The facts leading to the termination of his employment were basically not disputed. On 23rd April 1996, the appellant received news that his niece was very ill in Ndola and he approached his supervisors for permission to attend to his sick niece. He could not find his supervisor anywhere but he went to his supervisor's house where again he did not find him. He left a message with his supervisor's daughter that he had travelled to Ndola to J2 attend to his sick niece. It is worth noting that before his frantic search for his supervisor, he had left his leave application forms with his supervisor in which he applied for 3 days. He travelled to Ndola, unfortunately, he found his niece dead. He stayed on for the funeral and only returned to Luanshya after one day's absence. When reported for work on Monday, having returned from Ndola on Saturday, his supervisor told him that he was absent from work without leave and charged him with absenteeism. He appeared before the Disciplinary Committee which heard his case and found him guilty of the offence and summarily dismissed him. His appeal to the General Manager was dismissed hence his action in the High Court. The learned trial judge after considering all the evidence before him, he found that the appellant did all what a reasonable employee could do, having first filled in leave form and his Supervisor having told him to see him the following day and later having received the message of his niece's death, left a message at the supervisor's house. The learned trial judge found that although the appellant was serving his last warning following other offences, found that the appellant's last conduct was not a misconduct in the circumstances of the case. He had filled in leave forms which the supervisor ignored and the message of his niece's death and that burial was awaiting him, the learned trial judge found these to be extra-ordinary and urgent circumstances sufficient enough to justify the appellants absenting himself. He found the defence witness as a dishonesty person, who hid from the disciplinary committee, the fact that the appellant filled in leave forms and left a word at the witness's house before he left for Ndola. It was the learned judge's finding that had this witness informed the Committee these facts, it could not have taken the step it took and found the dismissal of the appellant J3 wrongful and awarded him, as damages, 12 months salary with interest at current short-term bank deposit rate from date of writ to date of judgment and thereafter interest at 6% until full payment, plus cost. The appellant appealed against the award of 12 months salary arguing that he should have been awarded 28 months salary plus one month salary for each year served and also education, transport, repatriation allowances and 36 leave days per year. In arguing the appeal, Dr Soko for the appellant, relied on his written heads of arguments. Mr Chamutangi, for the respondent also relied on his written heads of argument. We have considered the evidence in the Court below together with the pleadings and documents and the judgment of the learned trial judge. We have also considered the written heads of arguments from both parties. We note that although there was a cross-appeal filed in this matter, this was not argued in earnest. Having considered all these, we cannot fault the finding of the learned trial judge that the appellant tried to formally apply for absence but the supervisor did not sympathize with him. The finding of wrongful dismissal cannot be faulted. We are all humane and circumstances such as death should be approached with a human heart. We dismiss the cross­ appeal against wrongful dismissal. Coming to the main appeal against the award of 12 months salary, we see no basis of the appellant's claim that he should have been awarded 28 months salary, plus one month salary for each year served plus, all the allowances. He was not retired. He was wrongfully dismissed. On the award of 12 months salary, we have given guidance in the award of damages for wrongful dismissal especially in these days of shrinkage of jobs. It is very difficult to find jobs. We agree that the 12 months awarded is inadequate. We set aside this award and in its place we award the appellant 24 moths salary. The salary is that which he was getting before wrongful dismissal. From this award should be deducted the 12 months if already paid. We note that the judgment was delivered on 16th July 1999 and the appellant only appealed on 14th December 2003 after leave to appeal out of time was granted on 19th March 2003. This was a period, of over three years. The interest on this award will be as follows: The interest on 24 months salary will be at bank's short term deposit rate from the date of writ up to date of High Court judgment, and then at the lending rate as advised by the Bank of Zambia from the date of judgment up to date when the 12 months awarded by the High Court was paid as we have no reason to believe that the respondent would not have paid the 24 months then. The appellant sat on his right to appeal for over three years and he cannot have his cake and eat it. The appellant will have his costs in this Court. D K Chirwa SUPREME COURT JUDGE L P Chibesakunda SUPREME COURT JUDGE S K M Munthali ACTING SUPREME COURT JUDGE