Kapi Quintin Masuwa v Vision Fund Zambia Limited (APPEAL NO. 167/2023) [2025] ZMCA 155 (4 December 2025)

.. • • .. - IN THE COURT OF APPEAL OF ZAMBIA HOLDEN AT NDOLA (Civil Jurisdiction) APPEAL NO. 167 /202 3 BETWEEN: KAPI QUINTIN MASUWA O 4 DSS 2025 AND • . .... APPELLANT VISION FUND ZAMBIA LiMITED /. \ I RESPONDENT CORAM: KONDOLO, PATEL, AND CHEMBE JJA On 13t h November, 2025 and 4 th December 2025 For the Appellant For the Respondent • • • • No appearance Mr. H. Soko - Messrs Lumangwe Chambers JUDGMENT CHEMBE JA delivered the Judgment of the Court. Cases referred to: - .. 1. Attorney General v Marcus Achiunie (1983) ZR 1 2. Rhesa Shipping Conipany South Africa v Edniunds 2 ALLER 712 HL 3. Freda Kabaso Phiri v Davies Tenib o (SCZ) 4. Luka111a. and Others v Li11,tco (1998) ZR 98 5. Western Excavating ECC Lir11ited v Sharpe (1978) QB 761 6. Chilanga Cenient v SingogoJ SCZ Appeal No.13/ 2009 7. The Attorney General v Richa,~d Jac lcson Phiri (1988-89) ZR 121 SC 8. Kitwe City Council v Willian1 Nguni (2005) ZR 57 9. Nitrogen Chen1icals of Zanibia v Boyd Choniba Mutanibo and others SCZ Selected Judgn1en,ts No.44/2016 10. Ellen Zulu v Zan1bia Revenue Authority CAZ Appeal No. 99/ 2023 " 11. Sara Aliza Vekhnik v Casa Dei Ban1bino Montesom Zan1bia CAZ Appeal No. 126/2017 12. Barclays Bank PLc v Weston Luwi and Suzyo Ngulube (SCZ Appeal No. 7/ 201 2 13. Bupe and Another v Zan1bia National Con1n1ercial Banlc SCZ Appeal No. 27/ 2000 14. Pius Kasolo v ZCCM Investnient Holdi11gs IH CAZ Appeal No. 185/ 2022 15. Multichoice Zan1bia Lin1ited v Tutu Zulu CAZ Appeal No. 157/ 2023 16. Dennis Chansa v Barclays Banlc Plc (SCZ Appeal No. 111/ 2011) Other Works referred to: .. 1. Blaclc}s Law Dictionary 10th Edition 2. W. S. Mwenda & C. Chungu} A Con1prehensive Guide to En1ployn1e11t Law in Zanibia (2021) UNZA Press 1.0. INTRODUCTION 1.1 This appea l emanates from the Judgment of W. S Mwenda J dated 6 th March 2023 in which she dismissed the Appellant's claims for damages for wrongful, unfair and constructive dismissal. 2.0. BACKGROUND 2.1 The Appellant, who was the complainant in the Court below, commenced lega l proceedings before the Industrial Relations Division of the High Court seeking the following reliefs: i. A declaration that the Respondent constntctively dismissed the complainant and the dismissal was wrong and unfair; ii. Damages for wrongful and unfair dismissal; iii. Damages for mental anguish; J2 I I II ■ I iv. Payment of terminal benefits for the period the Complainant served the company; v. Interest on sums found due; vi. Any other relief the Court may deem fit; and vii. Costs. 2.2 The Appellant was employed by the Respondent in 2012 on permanent and pensionable conditions and rose through the ranks to the position of credit analyst. On 12 th July 2019, he was charged with the offence of sexually harassing a senior officer. 2.3 He denied the charge and claimed that the messages exchanged digitally were friendly and mutually understood as such. He was subjected to a disciplinary hearing following which he was dismissed from employment by letter dated 7 th August 2019. 2.4 On 9 August 2019, the Appellant appealed against the dismissal to the Respondent's interim General Manager. By letter dated 11 th September 2019, the interim General Manager reversed the decision of the disciplinary committee and ordered that the Appellant be reinstated. 2.5 Before the Appellant could resume his duties, he was placed on suspension with effect from 23 rd September 2019. The Appellant responded via email to the Respondent and expressed his concerns about the way his disciplinary issue was being h a ndled. The Appellant was subsequently charged with the offe11.ce of J3 gross misconduct on 27th November 2019. The particulars of offence were based on the same facts as for the earlier offence of sexual harassment. He was asked to exculpate himself within 48 hours. 2.6 The Appellant did not exculpate himself as requested. He was invited to attend a disciplinary hearing on 3 rd December 20·19 but he opted to resign. In the resignation letter, the Appellant stated that he was compelled to resign as the Respondent's conduct of charging him again on the same facts meant that they had no desire to keep him on the workforce. ·He se11.t his notice of intention to resign on 3 rd December 2019. His last working day was to be 3 rd January 2020. 2.7 The Appellant did not attend the disciplinary hearing and the Respondent proceeded with the hearing in his absence. On the same day, the Respondent issued a letter of summary dismissal to the Appellant. 2.8 Displeased with the turnout of events, the Appellant commenced legal proceedings. 3.0. THE DECISION OF COURT BELOW 3.1 After hearing the matter, the learned Judge in the Court below found that the second disciplinary charge of gross misconduct was different from the earlier one of sexual harassment. J4 • 3.2 As to whether the Appellant was constructively dismissed, the Court below, after analyzing what amounts to constructive dismissal, concluded that the he had not adduced evidence to . . show that the Respondent's conduct amounted to a fundamental breach of contract. The learned Judge in the Court below reasoned that the Appellant should have demonstrated that the alleged conduct of the Respondent ,i\Tas severe enough to amount to repudiation of the contract. She found that the Respondent had followed the disciplinary procedure. 3.3 The Court below also found that on the facts presented, the Appellant had failed to prove that his dismissal w·as unfair or wrongful. Following the above findings, the claims for damages were dismissed. 4.0. THE APPEAL 4.1 Disenchanted with the decision of the Court below, the Appellant launched this appeal fronting three grounds as follows: a) The Court below erred in law and fact when she held that the two successive charges against the Appellant were different merely on the basis of the labels or sections of the Disciplinary Code cited disregarding the facts on which they were premised being the same. b) That the Court below erred in law and in fact when she found that the manner in which the Respondent conducted its disciplinary process was not JS fundamentally inconsistent with the complainant's conditions of service. c) The Court below erred in law and in fact when it held that the Appellant had failed to prove his claims against the Respondent contrary to the evidence before the Court. 5.0 APPELLANT,S ARGUMENTS 5.1 The Appellant filed heads of arguments in support of ·the appeal on 2 n d June 2023. The Appellant charged that the lower Court made a perverse finding when it held that the two charges were different. Relyir1g on the case of Attorney General v Marcus Achiume1 , we were urged to reverse this finding . 5.2 It was submitted that contrary to the finding, the evidence showed that in both charges the victim was the same as where the facts upon which the charges were based; being unwanted sexual advances. The Appellant contended that the Respondent had breached the contract of employment by raising a • disciplinary charge on the same facts as a charge which had earlier concluded in his favour. 5.3 Regarding the 2 n d ground of appeal, the Appellant submitted that after dismissing him on a charge of sexual harassment, the Respondent sought a legal opinion on the propriety of · that charge. The Respondent was advised that the charge could not J6 - stick and opted to recharge the Appellant on a different charge based on the same facts. It was argued that the second charge had a predetermined outcome. 5.4 The Appellant maintained the manner in which the Respondent conducted its disciplinary process was fundamentally inconsistent with his conditions of service. He argued that the Court below arrived at its finding in that regard without 1·ecourse to the Disciplinary Code which was not placed before it. We were referred to the case of Rhesa Shipping Company South Africa v Edmunds2 . It was submitted the evidence before the court showed that the appeal process was final and the Appellant ought not have been recharged. 5.5 With respect to the 3 rd ground of appeal, the Appellant submitted that the conduct of the Respondent in restarting the disciplinary process after the successful appeal amounted to a fundamental breach of his contract of employment. It was argued that his resignation amounted to constructive dismissal. The case of Freda Kabaso Phiri v Davies Tembo 3 was cited in support of this submission. We were urged to reverse the findings of the Court below. J7 6.0. RESPONDENT'S ARGUMENTS 6.1 The Respondent filed its heads of arguments in response on 12 th July 2023. The Respondent maintained that. the Appellant was charged with two separate offences being sexual harassment and gross misconduct which occupied separate sections of the . disciplinary code. 6.2 With respect to whether the Appellant resigned or was dismissed, the Respondent submitted that the dismissal occurred during the notice period of the resignatio11. Rel1ring on th~ case of Lukama and Others v Lintco4 , it was argued that despite having issued a resignation letter, the Appellant remained an employee during the notice period and was therefore validly dismissed. It was submitted further that the resignation only took effec t on the expiry of the notice period. 6.3 The Respondent also challenged the Appellant's claim for constructive dismissal on the ground that the resignation was not with immediate effect. We were referred to the cases of Western Excavating ECC Limited v Sharpe 5 , Chilanga Cement v Kasote Singogo6 and Halsbury's Laws of England 5 th Edition Vol. 40 on the definition of constructive dismissal. . J8 • 6.4 A further argument by the Respondent was that the Appellant had not demonstrated that it had breached its terms and conditions of employment. It was submitted that the Appellant was charged and give1-i an opportunity to exculpate himself but he refused to subject himself to the discipli1-iary process. Reference was made to the case of Attorney General v Jackson Phiri7 in which the Supreme Court held that once the correct procedure was followed the only issue for consideration was the exercise of the disciplinary power. We were urged to dismiss the appeal. 7.0 HEARING 7 . 1 The Appellant filed a notice of non-attendance and therefore did not attend the hearing. Counsel for the Respondent entirely relied on the written heads of argument. 8.0 CONSIDERATION AND DECISION 8.1 We have carefully considered the record of appeal together with the arguments by both parties. The issue raised is i11. this appeal is whether the evidence presented disclosed that the Appellant was a victim of constructive dismissal. 8.2 In the first ground of appeal the Appellant challenges the finding of the lower court that the two disciplinary charges proffered J9 • against him were different. The Appellant's position is that the Respondent (his employer) had conducted its disciplinary proceedings in a manner that forced him to resign. The conduct complained of was that the Respondent had taken disciplinary action against the Appellant twice arising out of the same facts . 8.3 It is clear from the record of appeal that the Appellant. was charged and tried for the offence of sexual harassment aga inst a female senior officer, Nasilele Lubobya. The charge arose from digital messages sent by the Appellant to the Respondent which suggested that he would have sexual i11tercourse with her using any means including rape. 8.4 He was found guilty and dismissed. He appealed against. the dismissal to the General Manager. It is apparent that the General Manger sought a legal opinion on the propriety of the finding of the Disciplinary Committee on the charge of sexual harassment. 8.5 According to the legal opinion at pages 103- 105 of the record, the facts advanced at hearing did not show that the Appellant's advances were unwanted. The Respondent was advised that the dismissal on the basis of sexual harassment was unsafe~ 8.6 The Respondent set aside the dismissal and r·einsta ted the Appellant by letter dated 11 th September 2019 ~,hich the Appellant received on 20t11 September 2019 . On 23rd September JlO .. • 2019 the Appellant was suspended and sL1bsequently charged with gross misconduct. 8.7 As revealed in the charge letter dated 27 th November 2019, the particulars of that offence were that he had made unwelcome sexual advances on a Senior Manager called Lydia Nasilele Lubobya. 8.8 The Appellant immediately protested against the second charge on the ground that he was being targeted for dismissal. 8.9 The Court below found that the two charges were different. At page 39, the Court below stated as follows on the issue. ''A perusal of the charge letter dated 27th November 2019, exhibited by the complainant as ''KQM/12'' in his affidavit in support of notice of complaint discloses that the complainant's second charge was gross misconduct contrary to 4.8.3 No 43 of the Disciplinary code, while the earlier charge was sexual harassment contrary to section 33 of the disciplinary code. The two charges are different.'' 8.10 In our view the Court below should have considered the effect of relying on same facts for two different charges. The Court below did not consider that the underlying facts for both offence were the sa me. Despite referer1ce to different sections of t h e ' disciplinary code, the conduct complained of was the same. 8.11 Our view is that the legal opinion rendered after the first dismissal suggested that the facts did not show that the sexua l Jll • advances were unwanted in view of victim's conduct. There were no new facts that emerged that would have warranted the second charge. It is mind boggling that the same facts which were unsatisfactory for the first charge would have been sufficient for the second charge. 8.12 Further, the fact that the Appellant was reinstated lends credence to the fact that the particulars did not reveal sexual harassment. It is unclear why, after accepting the legal opinion that the alleged victim was complicit in the exchange of sexual messages, the Respondent went on to conclude that there was misconduct on the part of the Appellant. 8.13 In our view, charging the Appellant with a second offence on the same facts for which he had been exonerated in the earlier offences goes against the rules of natural justice, the principle of double jeopardy and is an abuse of process. Double jeopardy according to Black's Law Dictionary is prosecution or punishment of a person twice for the same offence. 8.14 We hold the view that it was erroneous to charge the Appellant with an offence based on facts for which he h ad been found not guilty. Although the two charges were based on different sectio1~s of the disciplinary code, they were based on the same facts. Our view is that the two charges were therefore the same to that J12 .... extent. The court below fell into grave error when it found that the two disciplinary charges were different. The 1st and 2nd grounds of appeal succeed. 8.15 In ground 3, the Appellant takes issue with the lower Court's finding that he had failed to prove his claims for constructive dismissal. There are numerous cases in which the Supreme Court has pronounced itself on what constitu·tes constructive dismissal. In the case of Kitwe City Council v William Nguni8 , the Supreme Court held that: "The test for constructive dismissal is whether or not the employer's conduct amounts to a breach of conduct which would entitle an employee to resign.'' In that case the Supreme Court, following the reasoning in the case of Western Excavating v Sharp5 where it was stated that. frustration, victimization and harassment vvould not render a dismissal to be constructive. The Court in that case found that charging the Respondent with a disciplinary offence could not amount to harassment. 8.16 In the later case of Nitrogen Chemicals of Zambia v Boyd Chomba Mutambo and others9 , the Supreme Court held that the three considerations for a constructive dismissal claim are; " 1 The employee must resign, 2 the resignation must be in response to a fundamental breach of contract and; 3 J13 II -• the employee must act promptly and in response to the said breach.'' 8.17 In the earlier case of Chilanga Cement v Singogosupra, it was held as follows: ''In constructive dismissal, an employee leaves employment promptly or by notice as a result of the conduct of this employer. An employee can claim to have been constructively dismissed if he resigned or was forced to leave employment as a result of his employer's unlawful conduct, which conduct amounts to a fundamental breach of contract of employment. It is th.e employee who makes the decision to leave.'' 8.18 From the above authorities, it is clear that constructive dismissal occurs where an employee resigns as a result of~ the employ er's conduct which amounts to a fundamental breach of the contrac-t of employment. 8.19 The Appellant argued that he had adduced sufficient evidence to support his claim for damages for constructive dismissal. He maintained that restarting the disciplinary process after the successful appeal amounted to a fundamental breach of contract. We agree that the Appellant was placed in a situation where he could not reasonably be expected to continue working due to the Respondent's conduct. J14 ---·-- ---------------------- 8.20 However, the issue that needs to be resolved is whether the Appellant's employme11.t terminated through· resignation or dismissal. The record of appeal shows that the Appellant, by letter dated 3 rd December 2019, gave the Respondent one month notice to resign. The implication of the notice period was that the Appellant was deemed to be in employment until the notice period expired. The Supreme Court had occasion to consider this issue in the case of Lukama and Others v Lintco (supra) cited by the Respondent. In that case the Supreme Court held that a termination clause which stated that the employees were entitled to stay in company housing for 3 months or payment of 3 months housing allowance in lieu of accommodation meant that the termination was not immediate. 8.21 In the present case, there is no dispute that the Appellant's lette~ of resignation clearly indicated the effective date of resignation as 3 rd January 2020. This mea11.t that the Appellant remained an employee of the Respondent a nd was amenable to disciplinary action. The Appellant was . therefore dismissed before his resignation became effective. In view of the above, .we cannot say that the Appellant was constructively dismissed. 8.22 As outlined above, in order for a claim for constructive dismissal to succeed, the termination of employment must be by way of J15 J basis of a legal opinion which advised that the evidence showed that the sexual advances did not appear to be unwanted. 8.25 In our view, in the absence of unwanted sexual advances, there could be no gross misconduct as the facts show that these were two consenting adults exchanging otherwise inappropriate messages. Charging the Appellant with a disciplinary offence which was not supported by a substratum of facts was an -abuse of process. The learned authors of A Comprehensive Guide to Employment Law in Zambia state as follows on what constitutes unfair dismissal: ''Unfair dismissal focuses on the merits or substance of dismissal. Therefore, apart from a dismissal contrary to statute, unfair dismissal can . also occur where the employee is dismissed on unsubstantiated or unreasonable grounds .'' 8.26 In the case of Ellen Zulu v Zambia Revenue Authority10 , we referred to our earlier decision in the case of Sara Aliza Vekhnik v Casa Dei Bambino Montesorri Zambia 11 where we stated that: ''What is of critical importance to note, however, is that the reasons given must be substantiated ... in other words, we must be satisfied that there was no malafides on the part of the employer.'' J17 8.27 Further, charging the Appellant for an offence based on the same facts for which he had been tried earlier, breached the rules of natural justice. We, therefore hold that the dismissal of the Appellant was unfair as the charge of gross misconduct was not supported by a substratum of facts. 8.28 Having found that the dismissal was unfair, we now have to consider the issue of damages. We are guided by the holding by the Supreme Court in the case of Bupe and Another v Zambia National Commercial Bank12 that granting of remedies is done ' with due regard to the need to do substantial justice. It is therefore imperative that courts should award damages that suit the circumstances of the case. 8.29 The need to award damages based on the peculiar circumstances of each case is demonstrated by the varying awards that have been granted by the Supreme Court and indeed this Court. In the case of Barclays Bank PLc v Weston Luwi and Suzyo Ngulube 13 , the Supreme Court guided that awarding of enhanced or compensatory damages depends on the manner of separation (especially if the dismissal was inflicted in a traumatic manner) and on the conduct of the employer. In the cited case an award of 24 months' salary as damages was upheld. J18 -.. • 8.30 In the case of Chilanga Cement v Kasote Singogo (supra), the Supreme Court awarded the Complainant 24 months' salary as damages for a malicious redundancy. In Pius Kasolo v ZCCM Investment Holdings IH 14 , we awarded 6 months' salary in damages for wrongful dismissal. 8.31 In the case of Multichoice Zambia Limited v Tutu Zulu 15 , we upheld an award of 36 months' pay in damages for unfair dismissal on the ground that the employee was dismissed on unconscionable grounds. . . 8.32 In the present case, the record of appeal shows that the Respondent was hell-bent on dismissing the Appellant. Despite having received a legal opinion disclosing the weaknesses in the allegations, the Respondent went ahead and dismissed the Appellant. We have no doubt that the dismissal was traumatic to the Appellant. 8.33 We also note that the Appellant was employed on permanent and pensionable conditions of service. He therefore had secl.1rity of tenure and it is uncertain whether he will find a similar position in the current job market. In the case of Dennis Chansa v Barclays Bank Plc 16 , the Supreme Court guided that loss of future employment prospects should be taken into consideration when awarding damages. J19 8.34 In our view, the Appellant's dismissal wa1-rants an e11hanced avzrard of damages . We, the1-efore, award the Appell811t 24 montl1s' salary as clamages for 1..1nfair clismissal . Tl1e same shall attract interest at tl1e fixed short ter1n banl<:: deposit 1-ate fron1 date of complai11 t to elate of judgme11 t and tl1ereafte1- at the Banl<: of Zambia Policy rate up to the elate of 1Jay1nent. We ma.ke no order for costs . -- C: - ' - - - - ..... • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • M. M. KONDOLO SC COURT OF APPEAL JUDGE • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • A. N. PATEL SC COURT OF APPEAL JUDGE Y. CHEMBE COURT OF APPEAL JUDGE J20