Sakala and Ors v Zambian Breweries PLC (Appeal No. 121/2022) [2023] ZMCA 173 (29 June 2023)

IN THE COURT OF APPEAL OF ZAMBIA HOLDEN AT LUSAKA Appeal No. 121/2022 (Civil Jurisdiction) BETWEEN: DENNIS SAKALA NEILKUSEKA MPUNDU MUKUKA AND 1 ST APPELLANT 2ND APPELLANT 3RD APPELLANT ZAMBIA BREWERIES PLC RESPONDENT Coram: Chashi, Majula and Patel, JJA On 14th June, 2023 and 29th June, 2023 For the Appellant : Mr. C Ngoma with J.fr. B. Stephen, both of Simeza Sangwa and Associates For the Respondent: Ms. J.f. J.!onga of Tembo Ngulube & Associates JUDGMENT MAJULA, JA delivered the Judgment of the Court. Cases referred to: 1. First Quantum Mining and Operations Limited vs Obby Yendamoh (SCZ Appeal No. 206 of 2015). 2. Zambia Ainvays Corporation vs Gershom 1Wubanga (1990 - 1992) ZR 149. J2 3. Kelvin Hang'andu vs Law Association of Zambia (SCZ . Judgment No.36 of2014). 4. Peter Mdelemani !JS Zambia Engineering Construction Company Limited - Industrial Relations Court Complaint No. 95/ 1995 5. Shilling Bob Zinka vs Attorney General ( 1990) ZR 73. 6. Zambia China Mulungushi Textile (. Joint Venture) Limited vs Gabriel Mwami (2004) ZR 244 (SC). 7. Zambia Bata Shoe Company Ltd vs. Damiano Mtambilika (2010) ZR (vol. 2) 244 - 254. 8. Wilson Ma.sauso Zulu v Avondale Housing Project Limited (1982) Z. R. 772. 9. Phiri vs Bank of Zambia (200 7) Z. R 7 86 I 0. Violet Nkwanjiwa Nkonjera !JS Chilanga Cement Pie SCZ Appeal 33/2007. 11. Edward Mweshi Chileshe vs Zambia Consolidated Copper Mines Limited (SCZ Judgment No. 10/ 1996). Legislation referred to: 1. Industrial and Labour Relations Act, Chapter 269 of the Laws of Zambia. 2. The Employment Act, Chapter 268 of the Laws of Zambia. 1.0 Introduction 1.1 This appeal is against the judgment delivered in the High Court by the Hon Justice Mr. M. K. Chisunka on 12th November 2020. 1.2 The learned Judge dismissed the appellant's claims for discrimination, wrongful dismissal and breach of rules of natural justice that w·ere alleged against the respondent. 2.0 Background J3 2.1 The appellants were employees of the respondent as production supervisors. On 23•d, 24th, and 25th April, 2007 the appellants supervised shifts that produced soft drinks that \l\lere marked with wrong expiry dates, that read 'Jsl ,January, 2007' instead of 'lsL January, 2008'. Through this error, the soft drink appeared expired when in fact not. Consequently, a total of 25,602 cases of soft drinks were produced and distributed to various customers. 2.2 The error \l\lent unnoticed until 25th April, 2007, \l\lhen a consumer informed the respondent that it had supplied expired soft drinks. This prompted the respondent to recall the distributed soft drinks from customers and engage casual w·orkers to rub off the wrong dates. The appellants ,vere consequently charged vvith gross negligence. They exculpated themselves and attended a disciplinary hearing on 7 th May, 2007. The appellants ,vere consequently dismissed from employment. 2.3 They eventually appealed unsuccessfully through the respondent's grievance mechanism structures. Some lab technicians who \l\lere on duty in the affected shifts were also charged ,vith misconduct, found guilty and penalized \l\lith letters of first warning. J4 3.0 Decision of the High Court 3.1 The learned Judge evaluated the evidence that was before him and identified the main issue for determination as being whether the appellants' dismissal by the respondent was wrongful, discriminatory or contrary- to the rules of natural justice. 3.2 On the issue of wrongful dismissal, the trial Judge found that the appellants had failed to lead cogent evidence showing a breach of contract by the respondent in the manner that it dismissed the appellants from employment. 3.3 Pertaining to the claim for breach of rules of natural justice, the Judge began by itemizing the tenets of natural justice in the context of employment matters as articulated in the case of First Quantum Mining and Operations Limited vs Obby Yendamoh1. Counsel pointed out that, first an employee must be charged with the alleged offence that he has committed. Secondly, he must be given an opportunity to exculpate himself. Thirdly, the employee must be afforded a fair and impartial hearing and thereafter the right to appeal, if necessary-. 3.4 In casu, the Judge found that the appellants \Vere charged with gross negligence, exculpated themselves and were found guilty. They were thereafter afforded the right to appeal their dismissal. That this entailed that there was no breach of the rules of natural justice even though there was a typing error J5 on the date for the letters of dismissal. The court further held that the provisions of section 26A of the Employment Act did not apply to this case as it only applied to oral contracts. 3.5 Regarding the claim for discrimination, the appellants alleged that they were treated less favourably than the Lab Technicians, Quality Assurance Officers and Electricians ,l\lho were similarly circumstanced. The learned Judge ultimately found that there was no discrimination on account of the fact that there were material differences in the duties and responsibilities of the appellants when compared to other employees listed above. All in all, the Judge dismissed the appellants' claims. 4.0 Grounds of Appeal 4.1 The appellants were dissatisfied ,l\lith the decision of the lower court and proceeded to file a notice and memorandum of appeal containing the following grounds of appeal: 1. The lower court erred in law and fact when it held that the appellants' dism.issal was lawful and justified; 2. The lower court erred in law and fact when it held that the claim for discrimination on account of being lower rank in status failed and was dism.issed. 3. The lower court erred in law and fact when it held that the dismissal of the appellants was in accordance with the rules of natural justice. J6 5.0 Appellants' arguments 5.1 On ground one, Counsel for the appellants submitted that according to Halsbury's Laws of England, volume 16(1) 4 th edition, wrongful dismissal is effected at the instance of the employer and is contrary to the terms of employment. It questions whether the dismissal was done in the prescribed manner or not. Counsel submitted that the respondent's disciplinary code provides for a procedure that must be followed when one is faced with disciplinary action (see page 139 of the record of appeal). 5.2 Counsel pointed out that, on 30th April, 2007, the appellants were charged with the offence of gross negligence. On 2 nd May, 2007, the appellants received letters informing them that they should attend a disciplinary hearing on 7 th May, 2007 which they did. On 8 th May, 2007, the appellants were served with letters of summary dismissal dated 4 th May, 2007. 5.3 It was contended that the respondent was in blatant breach of its disciplinary procedure. More pointedly, Counsel argued that there was no investigation conducted by the appellant's supervisor and the appellants were never informed in writing of the alleged offences against them after the investigations. That there was no pre-hearing by the Human Resource Department as prescribed by the disciplinary procedure code. The case of Zambia Airways Corporation vs Gershom J7 Mubanga, 2 was cited where the Supreme Court held that the appellant failed to comply with the correct procedure in the purported dismissal of the respondent. 5.4 Counsel observed that electrical technicians and not the appellants, are the ones who had the duty to input the production and expiry dates in the video jet coding machine. It was contended that the appellants were therefore not grossly negligent in the performance of their work, and were dismissed in breach of the contracts of employment. 5.6 Moving on to ground two, Counsel submitted that the appellants were discriminated against in relation to how they were treated when compared to lab technicians to check the corrections on the date code. That they were given stiffer punishment. The case of Kelvin Hang'andu vs Law Association of Zambia 3 was referred to where it was held that: "Discrimination can only exist in relation to at least two categories of persons. Discrimination means treating like cases differently or as is claimed in the present case, treating unlike cases the same." 5. 7 It was contended that the appellants and the lab technicians were under similar circumstances but were however charged and punished differently. Counsel asserted that the conduct of the respondent was in breach of section 108(1) of the Industrial and Labour Relations Act and therefore the J8 ground should be allowed. To reinforce the submission, Counsel cited the case of Peter Mdelemani vs Zambia Engineering Construction Company Limite~. 5.8 Finally, on ground 3, Counsel submitted that the dismissal was in breach of the rules of natural justice which dictate that one should be given an opportunity to be heard and the decision maker ought to be impartial. The gist of the appellant's argument on this ground was that the appellants were served with a dismissal letter dated 4 th May, 2007 when the disciplinary hearing was held on 7th May, 2007. That this offends the rules of natural justice as the appellants were not given an opportunity to be heard before the dismissal. It was argued that the respondent had already decided to dismiss the appellants before the disciplinary hearing. 5. 9 We were implored to allow the appeal. 6.0 Hearing of the appeal 6.1 At the hearing of the appeal Counsel for the appellant relied on the heads of argument that were filed. On behalf of the respondent Ms. Monga indicated that she did not file any heads of argument but would rely entirely on the record of appeal. 7.0 Decision of the Court 7.1 We have carefully scrutinized all the evidence on the record as well as the submission by counsel. The unhappiness by J9 the appellant stems from the findings by the court below that he was not wrongfully dismissed. Further that rules of natural justice were complied with and that he was not discriminated against. We shall deal with the issue of wrongful dismissal and breach of natural justice together as they are intertwined. 7.2 The question that arises is whether or not the respondent breached the terms of the employment contract in the manner that it dismissed the appellant from employment. It has been contended that the disciplinary code was not followed and this breach must militate against the respondent. We have looked at the disciplinary code and the process that was employed by the respondent. The appellants were notified of the case against them and were given an opportunity to be heard. Following a disciplinary process in which they were subsequently found wanting, they were dismissed. 7.3 In law, there is a requirement to afford an employee an opportunity to be heard before dismissing him or her. We recall the case of Shilling Bob Zinka vs Attorney General5 where the Supreme Court articulated the principles of natural justice as follows: "Principles of natural justice- an English law legacy- are implicit in the concept of fair adjudication. These principles are substantive principles and are two-fold, namely, that no man shall be a Judge in his own cause, JlO that is, an adjudicator shall be disinterested and unbiased (nemo judex in causa sua): and that no man shall be condemned unheard, that is parties shall be given adequate notice and opportunity to be heard (audi alteram partem). 7.4 Another illuminating case 1s that of Zambia China Mulungushi Textile (Joint Venture) Limited vs Gabriel Mwami6 where the Court of last resort went on to state as follows: "Tenets of good decision making import fairness in the way decisions are arrived at. It is certainly desirable that an employee who will be affected by an adverse decision is given an opportunity to be heard." 7.5 It is clear from the foregoing that there is a pre-requisite for an employee to be heard on whatever charges may be leveled against him for the subsequent decision rendered to be considered fair. Turning to the failure of an employer to follow its disciplinary code but having given the employee an opportunity to be heard, the Supreme Court guided as follows in the case of Zambia Bata Shoe Company Ltd vs. Damiano Mtambilika7 : "With regard to the argument that the appellant Jailed to tender documentary proof of the respondent's guilt, we note that the Respondent was interviewed on the allegations preferred against him, which were expressly Jll given on a charge form. He was given an opportunity to exculpate himself which he did. Having followed the rules of natural justice, the respondent cannot, in our view allege and succeed on the basis that the appellant failed to follow its own Disciplinary Code. Besides, there are circumstances, which have shown that it was not prudent to go by the Disciplinary Code . .,, 7.6 It is crystal clear to us that ,vhere rules of natural justice have been followed, a claim that the employer has failed to follow its disciplinary code cannot be sustained. 7.7 Turning to the facts of this case, we are in agreement with the trial court that the appellants did not specify which provision had been breached and that the respondent had complied with the disciplinary process which is outlined in its disciplinary code of conduct. It was on this basis that the court came to the inescapable conclusion that the claim for wrongful dismissal ,vas bereft of merit. 7.8 The argument that the letter that ,vas given had different dates and had been drawn prior to 8 th May, 2007 was considered by the court which found that the respondent's explanation was plausible and that the appellants had failed to particularise and prove the claim that the decision to dismiss them ,vas made on 41h Mav 2007 and thus - predetermined. J12 7.9 In our vie\v, the aspect of which day they \vere dismissed is an attempt by the appellants to grasp at straws or put differently a drowning person clutching at straws. We disagree with the appellant that their dismissal was predetermined. 7.10 We cannot fault this finding of fact by the Judge as has been stated in a plethora of authorities that an appellate court can only set aside findings of fact if they \Vere either perverse or made in the absence of any relevant evidence or upon a misapprehension of facts as espoused in the case of Wilson Masauso Zulu vs Avondale Housing Project Limited/1 7 .11 The court below was therefore on firm ground when it held as it did that there was no breach of the rules of natural justice, neither was the dismissal wrongful. We accordingly find no merit in grounds one and three. 7.12 The grievance in ground two by the appellants is that they were discriminated against and have taken great exception to the trial Judge having found otherwise. As far as the appellants are concerned, they were treated differently from similarly circumstanced persons. The Judge highlighted the provisions of section 108 of the Industrial and Labour Relations Act which deals with discrimination and the onus being on the aggrieved party to establish that they were treated differently in comparison to other similarly circumstanced colleagues. We have also perused the case of Phiri vs Bank of Zambict-J which held that: Jl3 "What we have to decide is whether on the evidence, discrimination was not proved as the learned trial Judge held. We have carefully considered the evidence on this issue. We accept Mr. Mulenga 's submissions, and the learned trial Judge's finding that there was no discrimination proved. As Mr. Mulenga rightly submitted, there is no evidence that the other persons who were not discharged also bounced numerous cheques as the Plaintiff did. As the learned trial Judge quite rightly pointed out, there is no evidence that the breaches by the other persons here were like those committed by the Plaintiff and those others who were not dismissed were similarly circumstanced. The learned trial Judge was on firm ground when he found that the Plaintiff was not discriminated against." 7.13 In order to establish discrimination a party alleging must demonstrate that they were treated differently or less favourably than their fellow employees in the matter. What is of critical importance is establishing also that you \Vere in actual fact similarly circumstanced. The central issue for determination in this regard was whether the other colleagues can be said to have been similarly circumstanced in order for the claim to be sustained. In answering this question, the Judge had this to say at page J18 and page J28 of the judgment: Jl4 "The evidence adduced by the complainants themselves dem.onstrates that there were material dijferences in the duties and responsibilities of the complainants compared to the Lab Technicians, Quality Assurance Officers and Electricians. Thus, it cannot be said that the Complainants, Lab Technicians, Quality Assurance Officers and the Electricians were comparable in all material respects to warrant them being similarly circ.'U,mstanced. " 7.14 We have also considered and derived guidance from the Violet Nkwanjiwa Nkonjera vs Chilanga Cement Plc10, where the Supreme Court articulated the follo,ving principles: "It is incumbent on a party alleging discrimination to show that the treatment given to him was less favourable than the treatment given to another person who was sim.ilarly circumstanced as him." 7.15 It follows from the above that the onus to prove discrimination lay on the appellants and this onus was to prove on a balance of probabilities that they were discriminated against (see Masauso Zulu vs Avondale Housing Projectf'. 7 .16 The appellants, merely stating that they were treated differently from others, does not automatically entitle them to succeed on a claim of discrimination. Indeed, there were others that they worked \\'ith, who had some role to play with J15 respect to the end product of the soft drinks appearing with wrong expiry dates. They \Vere given different charges and from the evidence the Judge critically examined the roles of the other individuals who were part and parcel of this unfortunate incident. He came to the irresistible conclusion that they were differences in the duties and responsibilities of the appellants in comparison to the other colleagues. This distinction in the duties and responsibilities does not mean that they were similarly circumstanced. The trial Judge's findings cannot be assailed on this score because he clearly explained ho\v he arrived at his findings. We are further fortified in our conclusion by the case of Edward Mweshi Chileshe vs Zambia Consolidated Copper Mines11 where the erstwhile Ngulube CJ (as he then was) eloquently stated thus: "However, the attempt to transmute all and any unfairness and all differential treatment or any kind of discrimination whatsoever into social status discrimination will of course continue to be pronounced against. The onus will be on litigants to establish and to demonstrate the existence of reasonable cause to believe that the tennination or other penalty or disadvantage was on account of social status. A point needs to be made - and stressed - regarding the discrimination cases: In effect, the rule against discrimination on at least one of the grounds listed in the statute was clearly intended to guard against unwarranted victimisation or Jl6 inexcusable unfairness. The liability of the employer and the entitlement of the employee to a judgment in his or her favour must necessarily depend on the absence of reasonable or just cause, where despite any colourable excuse cited or contractual clause cited, the real, substantial, dominant, or operative reason is the discrimination on one of the grounds. The rule could not have been designed to benefit or to protect workers who are guilty of wrong doing in fact which is sufficient to warrant the termination, penalty or disadvantage inflicted. " 7. 17 It follows that the respondents were entitled to treat the lab technicians, quality assurance officers and electricians differently as they were not similarly circumstanced owing to what the Judge found to be material differences "in their job title, description, tasks, duties, responsibilities and ultimately the misconduct they engaged". As guided by the apex Court, courts should not accept allegations of discrimination to be conclusive merely because parties have been treated differently. 7. 18 For reasons articulated above we accordingly find no merit in the second ground of appeal. 8.0 Conclusion 8.1 In sum, we have found no merit in all the three grounds of appeal and accordingly dismiss them. It being a matter J17 originating from the Industrial Relations Court Division, employment matter, each par shall bear their costs. J. C shi COURT OF APPEAL JUDGE ......... ~ ............. , B. M. Majula COURT OF APPEAL JUDGE A. N. Patel SC COURT OF APPEAL JUDGE