Mubita Anawana v Drill Africa Zambia Limited (COMP NO. IRC/ND/73/2017) [2017] ZMIC 3 (26 October 2017)

IN THE HIGH COURT FOR ZAMBIA COMP NO. IRC/ND/73/2017 AT THE NDOLA DISTRICT REGISTRY HOLDEN AT NDOLA (INDUSTRIAL/ LABOUR DIVISION) BETWEEN: MUBITAANAWANA AND COMPLAINANT DRILL AFRICA ZAMBIA LIMITED RESPONDENT BEFORE: Hon Judge E. L. Musona For the Complainant: In person For the Respondent: Mr. M. Ndhlovu-Logistical Officer JUDGMENT Date: 26th October, 2017 CASES REFERRED TO: 1. Zambia Privatisation Agency v James Matale (1995-1997) ZR 157 2. Makaya v Payless Supermarket (Pty) Ltd (2007) 1 BLR 521 3. Zambia China Mulungushi Textiles (Joint venture) Ltd v Gabriel Mwami, SCZ Appeal No. 28 of 2003 J2 4. Setrec Steel and Wood Processing and 2 Others v Zambia National Commercial Bank Pie SCZ Appeal No. 39 of 2007 5. Wilson Masauso Zulu v Avondale Housing Project Limited (1982) ZR 172 (SC) 6. Khalid Mohamed v Attorney General (1982) Z. R. 49 7. Galaunia Farms Limited v National Milling Corporation Limited (2004) ZR 1 SC 8. Swarp Spinning Mills v Sebastian Chileshe SCZ Judgment No. 6 of 2002 9. Munkansemu Nyirenda v Zambia Forestry and Forest Industries Corporation Limited Appeal No. 127/ 2013 10. Marshal v Harland & Wolff Limited (1972) I WLR 899 LEGISLATION REFERRED TO 1. Section 36 of the Employment Act Chapter 268 of the laws of Zambia as amended by Act No. IS of 2015 OTHER WORKS REFERRED TO 1. Paragraph 323 ofHalsbury's Laws of England, Volume 16, 4th Edition 2. N. M. Selwyn, 'Selwyn's Law of Employment', 14th Edition, Oxford University Press: Oxford, at page 411 J3 This Complaint was filed by Mubita Anavvana. The Complaint was filed against Drill Africa Limited. I shall therefore refer to Mubita Anawana as the Complainant and to Drill Africa Limited as the Respondents which is what the parties to thi s action actual ly were. The Complainant's claim is for the following reliefs :- 1. Damages for wrongful and unfair dismissal. 2. Damages fo r pain and suffering. 3. Payment of one months' salary in lieu of notice. 4. Interest. 5. Costs. 6. Any other dues that the cou11 may deem fit. The duty for this court is to ascertain whether or not the Com plainant has proved his claims. In his evidence, the Complainant CW 1 told the Court that he was employed by the Respondent on the I 51h of December, 2015 as a mechanic/driver and was deployed lo work in the Democratic Republ ic of Congo. He worked until 61h April, 20 17 when the contract was terminated. CW! told the court that sometime in 20 17, as he was on his way to the work site, the truck he was working with got stuck in the mud. He started digging in order to free the truck, in the process he felt a sharp pain in the back. He was given time to go to the clinic at the site, he was put on bed rest and he was not able to work for ten ( I 0) days due to backache. As he was not responding to treatment while he was at the site, the Supervisor who was the Respondent' s site adm inistrator by the name or Mr. Guy Mbondo gave him permission to leave the site and travel back to Ndola in Zambia for J4 medical treatment. The site clinic did not have an x-ray machine and the Respondents did not make any arrangements for him to go to a big hospital in the Democratic Republic of Congo. The Supervisor gave him transport money to travel from the site to Kolwezi town. He was further given transport money to travel from Kolwezi town in the Democratic Republic of Congo to Ndola in Zambia. He left the site on 24th March, 2017, he arrived in Ndola on the 28 th of March, 20 17 and he reported to the Respondents' office in Ndola. He saw the Director Mr. Roberto Russo and explained to him why he had left the site. His leavin g the site to seek med ical treatment in Zambia for the backache sustained while on duty did not sit wel l with the Director, who told him that his services were no longer req uired and he should just wait for his letter of termination of employment. He further told the court that he went to the Respondents' company clinic and he was attended to by Doctor Tailor who gave him 3 days bed rest. Doctor Tailor asked him to submit an x-ray for the backache. He fin ally received his term ination letter on 7th Apri l, 2017 which did not state a reason for termination. The letter is marked as exhibit "AM2" in the Complainant's Affidavit in Support of Noti ce of Complaint. The Respondents' called two (2) witnesses. R WI was Mcfallen Ndhlovu. He told the court that the Complainant had worked for the Respondents for almost sixteen ( 16) years on several contracts. His last contract where he was employed as a mechanic/ driver with effect from I 5th December, 2015 was the one in issue. Before the Complainant le~ Zambia to go and work for the Respondents in the Democratic Republic of Congo, he underwent medical checkups which proved that he had backache. While he was in Congo, he became unruly to his bosses and he wanted to return to Zambia. He did not inform the Respondents about the acc ident he had with the trnck he was working with in Congo and he never reported to the Respondents about his backache. This did not sit well ,-vith the Respondents' management. JS R WI told the court that the Complainant was attended to at the Respondents' hospital in Congo and he was given 7 days off work. He came back to Zambia on his own accord, the only reason the Respondents gave him transport money to travel back to Zambia was that he wanted to walk back all the way to Zambia. When he arrived in Zambia, he did not report to the Respond ents ' offices but sent his wife to pick up a sick note, which the Respondents declined to give. He was attended to at the Respondents' clinic here in Zambia. In cross-examination RWI told the court that he had no documentary proo f to show that the Complai nant deserted work. R W2 was Guy Mbondo. His evidence was that he received instruct ions from the Respondents to go to Kolwezi town to meet the Complai nant and take him to the hospital. When he met the Complainant, he to ld him that he wanted to take him to a big hospital in Kolwezi so that his backache could be treated, however, the Complainant refused and insisted on travelling back to Ndola in Zambia. When he met the Complainant in Kolwezi, he was not seriously sick and he was able to move by himself from the site to Kolwezi which is about 120 kilometres from the site. He told the court that he then gave transport money to the Complainant to enable him to travel back to Ndo la although he was the only mechanic at the site and was needed by the Respondents. R W2 told the court that when the Complainant arrived in Zambia, he did not report back to him on how he travelled, hence he became a deserter. In cross- examination, R W2 told the cou1'l that he only fo und out from the site that the Complainant was complaining about backache. The procedure when an empl oyee fe ll il l at the site was to report to the Supervisor, who wou ld then refer the employee to the clinic at the site. If the ail ment cannot be treated at the site clinic, then the employee would be referred to a big hospital. Having considered the evidence in this case, I must now consider the relief sought. I. Damages for wrongful and unfair dismissal ........ - - - -- - J6 Wrongful dismissal is a dismissal which arises when the employer has breached a term of the contract of employment when dismissing the employee. Wrongful dismissal also arises when the allegation upon which the employee was dismissed was not proved against the employee. The contract of employment which the Complainant signed with the Respondents provides for termination of employment as follows:- " 15. TERMINATION OF EMPLOYMENT The Employer may terminate this Contract of Employment as follows: 15.2 Upon completion of probation period, either party must give the other Thirty(30) days' notice, which may be given at any time. !5.3 Either party to this Contract may, at his discretion, pay the other party in lieu of notice. 15.4 If the services of the Employee arc summarily terminated for disciplinary reasons, no notice period or pay on lieu of notice is required. 15.5 In the event that the Employee is absent from work for more than Five (5) consecutive working days for any reason without notifying the Employer of his/her whereabouts, this Contract of Employment will terminate on the last day the Employee had reported for duty." I have also seen the letter of termination of employment which was issued by the Respondents and marked as "AM2" in the Complainants Affidavit in Support of Notice of Complaint which provides that:- "From: Site Administrator- DrillAfrica-Congo SARL Date: 6 April, 2017. i I I I I I I i I I I I I I ! I Dear Mr Mubita, J7 RE: TERMINATION OF EMPLOYMENT CONTRACT This serves to inform you that your employment with DrillAfrica-Congo SARL has been terminated effective 7 April, 2017. You shall be paid the following; i. ii. Days worked up to the last shift Leave days accrued if any." It is evident from the letter of termination written by the Respondents to the Complainants that there was a breach of contract because the Complai nant was not given any notice or paid in lieu of notice as provided in clause 15. 3 of the contract. In the case of Zambia Privatisation Agency v James Matale (1995-1997) ZR 157, the court stated that:- "Where the contract expressly or impliedly provides that the relationship of employer a nd employee is to endure for a certain time, the contract will be determined at the conclusion of such period. Termination before the agreed date may take place either lawfully or wrongfully by one of the events or acts to be discussed below. If such termination is lawful, then the parties will be discharged from the obligation of the contract without any liability there under. If it is wrongful on the other hand, the party guilty of premature cleterminntion will be in breach of the contract and will be liable accordingly." The Complainant 's contract of employment was wrongfully terminated because he was not given any notice and this was a breach of contract which makes the Respondents liable. Further Section J8 36 of the Employment Act Chapter 268 of the laws of Zambia as amended by Act No.15 of 2015 provides that:- " 36. (I) A written contrnct of service shall be terminated- (a) by the expiry of the term for which it is expressed to be made; or (c ) in any other manner in which a contract of service may be la·wfully terminated or deemed to be terminated whether under the provisions of this Act or otherwise, except that where the termination is at the initiative of the employer, th e employer shall give reasons to the employee for the termination of that employee's employment. (2) Where owing to sickness or accident an employee is unable to fulfill a written contract of service, the contract may be terminated on the report of a registered medical practitioner. (3) The contract of service of an employee shall not be terminated unless there is a valid reason for the termination connected with the capacity, conduct of the employee or based on the operational requirements of the undertaking." Based on the foregoing provision of the law, a valid reason has to be given to an employee by the employer before his or her contract of employment is terminated. The letter of termination of contract that was given to the Complainant by the Respondents does not disclose any reason at al l for termi nation of his employment. The Respondents' Answer to Notice of Complaint filed into cou11 on 30th June, 20 17 states in paragraph two (2) that the Complainant was away from employment for more than ten ( I 0) days, hence he became a deserter. The Respondents are relying on clause 15.5 of the contract of employment that was signed by the Complainant. The al legation of being absent from work for more than IO consecutive working days for any reason without notifying the Respondents of his whereabouts was not proved against the Complainant. from the evidence on record, it is not in dispute that the Complainant informed the Respondents thnt he had backache whi le he was in the Democratic Republic of Congo. The Site Administrator J9 Mr Guy Mbondo who was RW 1 confirmed to the court th at he was instructed by the Respondents to pick up the Complainant from the work site and take him to the hospital as he was complaining of backache. R WI told the court that he gave transport money to the Complainant to trave l back to Ndola, Zambia for medical treatment. CW I who was the Complainant told the court that when he arrived in Ndola, he went to the Respondents' hospital for treatment and he produced a medical report marked "AM3" which he obtained from Ndola Teaching Hospital where he was referred by the Respondents ' hospital. CW I told the court that after he obtained treatment, he went to the Respondents' offices in Ndola and he met the Director Mr Roberto Russo who was not happy that he had come back to Zambia for treatment. This goes to show that the Complainant notified the Respondents' of his whereabouts, and the Respondents ' authorized his coming to Zambia for treatment by giving him transport money hence the allegations of being a deserter were not proved against him . I am persuaded by the case of Makaya v Payless Supermarket (Pty) Ltd (2007) 1 BLR 521, where it was stated that:- "The court ought to determine whether there was a ny ev idence to prove that the Appellant had indeed committed an offence for which he ought to have been dismissed" Further, in the case of Marshal v Harland & Wolff Limited (1972) l WLR 899, it was stated that:- "If the employee demonstrates that they are able to perform the duties and responsibility of that job, even after a period of absence from work, a termination of employment will not be valid nnd will be harsh and unreasonable. If an employer hns dismissed an employee due to persistent illness the court will consider if the dismissal was fair. Relevant consideration will include whether there was fair consultation with the employee for the true m edical position and whether the employer sought a reliable medical opinion before making his decision." J10 This now leads me to the claim for unfair di smissal. Unfair dismissal relates to disciplinary procedure in dismissing the employee. If the disciplinary procedure is not fo llowed, the dismissal amounts to unfair dismissal. In order for the dismissal to be fa ir, the employer must adhere to disciplinary procedures and the reason for the dismissal must be val id. 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 dismissal, 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 Complainant was not charged with the offence of being absent from work. He was not even given a chance to exculpate himself over the allegations of deserting work because the Respondents were aware that the Complainant was suffering from backache and undergoing medical treatment. The Respondents did not even bother to get a medical opinion in relation to the backache before terminating the Complainant's contract of employment According to the learned authors, N. M. Sehvyn, 'Sclwyn's Law of Employment', 14th Edition, Oxford University Press: Oxford, at page 411 :- ''There are two stages in the process of determining ·whether or not a dismissal is fair. The first is the means whereby the decision is reached; that is, the procedures followed by the Jll employer before arriving at the decision to dismiss the employee. The second stage is the actual decision taken; whethet· the employer acted reasonably in dismissing the employee" In the case of Zambia China Mulungushi Textiles (Joint venture) Ltd v Gabriel Mwami, SCZ Appeal No. 28 of 2003,the Supreme Court held that: "It is certainly desirable that an employee who will be affected by an adverse decision is given an opportunity to be heard." I am also alive to the Supreme Court decision in the case of Sctrec Steel and Wood Processing and 2 Others v Zambia National Commercial Bani< Pie SCZ Appeal No. 39 of 2007. In that case the Supreme Cou11 stated that: "a decision on the merit is a decision arrived at after hearing both parties. " The Complainant was not given the right to be heard and this is against the rules of natural justice. The decision to terminate the Complainant' s contract of employment was not arrived at on merit as he was not given an opportunity to be heard . This amounts to unfair dismissal. The Complainant has proved his claim for damages for wrongful and unfair dismissal. A complainant has to prove his or her claim in order to succeed. I am well gu ided 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 docs not entitle hi~ to Judgment." Jl2 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 reasonable 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 Nyircnda 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 as damages. The Appellant was dismissed on the basis 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 anc.l perquisities" Based on the aforecited 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 the allegation of being absent from work for more than IO clays or given an opportunity to prepare himself for the adverse decision that befell him. My considered view is that the Complainant was treated in a harsh manner with blatant disregard of the rules of natural justice. This is a proper case to depart from the normal measure of damages and J hereby award the Complainant damages for wrongful and unfair dismissal equivalent to six (6) months' salary including all allowances and perquisites. Further, the Complainant should be paid one months' salary in lieu of notice as he was not given any notice before his contract of employment was terminated despite the contract p1·oviding for notice. These damages shall attract interest at the Jl3 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 fu ll payment. 2. Damages for pain and suffering. 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 support his claim. It is not automatic that once a claim against dismi ssal succeeds, then even the claim for damages for pain and suffering wi ll succeed. The Complainant must lead evidence to prove the nature and extent of pain and sufferin g. I am again 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 Nationa l 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 Deli vered and signed at Ndola this 26th day of October, 2017 Hon E. L. Musona JUDGE