Nyirenda v Zambia Forestry and Forest Industries Corporation Limited (Appeal 127 of 2013) [2016] ZMSC 16 (4 February 2016)

, ' IN THE SUPREME COURT OF ZAMBIA HOLDEN AT KABWE (CIVIL JURISDICTION) APPEAL NO. 127/2013 BETWEEN: ~ MUKANSEMU SHAMBWEKA NYIRENDA (MRS) (Suing as the Administratrix of the late ELIJAH NYIRENDA) AND ZAMBIA FORESTRY AND FOREST INDUSTRIES CORPORATION LIMITED of the estate APPELLANT RESPONDENT CORAM: MAMBILIMA, CJ, WOOD AND KAOMA, JJS; On the 3rd November, 2015 and 4th February, 2016. For the Appellant: For the Respondent: Mr. P. KASONDE, of Messrs. Patrick Kasonde & Co. Mr. P. SONGOLO, of Messrs. Philsong & Partners. JUDGMENT MAMBILIMA,CJ, delivered the Judgment of the Court. CASES REFERRED TO- 1. ROLAND LEON NORTON V. NICHOLAS LASTRON (2010) 2 ZR 358; 2. ZESCO LIMITED V. D. L. MUYAMBANGO (2006) ZR 22; 3. BANK OF ZAMBIA V. KASONDE (1995-1997) ZR 238; 4. ZAMBIA AIRWAYS CORPORATION LIMITED V. MUBANGA (1990- 1992) ZR 149; 5. JOSEPH CHINTOMFWA V. NDOLA LIME (1999) ZR 172; 6. ZAMBIA RAILWAYS LIMITED V. OSWELL SIMUMBA (1995) ZR 41; 7. ZCF FINANCE SERVICES LIMITED V. HAPPY EDUBERT PHIRI, SCZ APPEAL NO. 93 OF 2001 (UNREPORTED); 8. BARCLAYS BANK ZAMBIA LIMITED V. MANDO CHOLA AND IGNITIUS MUBANGA SCZ JUDGMENT NO.8 OF 1997; 9. COMMUNICATIONS AUTHORITY V. VODACOM ZAMBIA SCZ JUDGMENT NO. 21 OF 2009; J1 10. POSTS AND TELECOMMUNICATIONS CORPORATION LIMITED V. PHIRI (1995-1997) ZR 61; 11. 12. 13. NGWIRA V. ZAMBIA NATIONAL INSURANCE BROKERS (1993- 1994) ZR 140; ATTORNEY-GENERAL V. RICHARD JACKSON PHIRI (1988- 1989) ZR 121; AND SWARP SPINING MILLS V. SEBASTIAN CHILESHE AND 30 OTHER (2002) ZR 23. LEGISLATION REFERED TO- (i) INDUSTRIAL AND LABOUR RELATIONS ACT, CHAPTER 269 OF THE LAWS OF ZAMBIA. OTHER WORKS REFERRED TO- (a) DANNY SAMSON AND RICHARD DAFT, 'MANAGEMENT', 2ND EDITION, PAGE 14; AND (b) N. M. SELWYN, 'SELWYN'S LAW OF EMPLOYMENT', 14TH EDITION, OXFORD UNIVERSITY PRESS: UXFORD, AT PAGE 411. This is an appeal from a Judgment of the Industrial Relations Court, delivered on 21st November, 2012. This followed a Complaint filed by Mr. Elijah NYIRENDA, the Appellant (who has since demised and is in these proceedings being represented by the Administratrix of his estate, Mukansemu Shambweka NYIRENDA) against the Respondent, on the ground that his dismissal from employment by the Respondent was unfair, unlawful, malicious and discriminatory. The Appellant sought the following reliefs: (i) (ii) the Complainant be reinstated to his job as "an order that Director of Finance unconditionally; in the alternative that contract and all his earnings up to the end of his 3 year contract; the Complainant be paid his gratuity on J2 (iv) the Complainant be paid damages for unlawful (iii) an order that dismissal; an order that the Complainant be paid 3 months' salary in lieu of notice plus leave days and all half salaries still outstanding; any other relief the Court may award; and an order that the Complainant be paid interest and costs of this litigation. " (v) (vi) The facts of this case are common cause. The Appellant was employed by the Respondent as Director of Finance, on 1st February, 2010, on a three year contract. In terms of the organizational structure, in so far as it is relevant to this appeal, the following officers worked under him: the Finance Manager, Mr. J. MUKUKA, the Financial Accountant, Mr. S. ZYAMBO, and Cashiers, in that order of seniority. The Appellant reported directly to the Managing Director, Mr. Frightone SICHONE, who testified in this matter as RW1. During the time that the Appellant was head of the Finance Department, it was discovered that a Cashier by the name of Mr. George IMAMUNA,based at the Respondent's headquarters, had either been under-banking or not banking revenues in the months of May and June, 2011. The procedure for handling of revenue from the sale of products from the Respondent's plantation was that a customer J3 would pay money for the purchase of the product to the Sales Cashier, based at the Plantations Department. The Sales Cashier would prepare a receipt for the sale, which would be checked and signed by the Plantation Officer before it is issued to the customer. The Sales Cashier would then hand over the revenue to a cashier based at headquarters, in this case Mr. IMAMUNA,who was responsible for banking the money. The Sales Cashier would enter all the sales for the day on the Daily Revenue Summary Sheet. The cashier based at headquarters would return the bank deposit slips, for the banked money, to the Sales Cashier who would attach the deposit slips to the Daily Revenue Summary Sheet for the day's sales. An officer called Beat Forester would check the Daily Revenue Summary Sheet for the day and sign it if he or she was satisfied that the sales tallied with the money banked. The Sales Cashier would then take the Daily Revenue Summary Sheet to Accounts where entries would be made in the cash book. The Plantations Department would then generate weekly and monthly sales reports which would be copied to the Director of Finance for his information and record. J4 The Sales Cashier, in the instant case, was Mr. J MWEWAand the Beat Forester was Mr. Chanda CHITAMBO. The lower Court found that in May and June, 2011, both Mr. MWEWA and Mr. CHITAMBOhad reported delayed or non-banking of revenue, by Mr. IMAMUNA,to Mr. MUKUKA. With regard to the month of May, Mr. MUKUKA told the Disciplinary Committee that when he questioned Mr. IMAMUNA about the allegation, he was assured that the money was in the safe and that he would deposit it in the bank without further delay. Mr. MUKUKAfurther told the Committee that the following week Mr. IMAMUNAinformed him that he had banked the money. As for the month of June, Mr. MUKUKAstated that on 24th June, 2011, Mr. MWEWAagain complained to him about Mr. IMAMUNA'sfailure to bank revenue for that month. On 27th June, 2011, he informed the Appellant about the reports of delayed banking and non-banking of revenue. The gist of the Appellant's evidence before the Industrial Relations Court was that although he was summarily dismissed for the loss of the money, he was not the immediate supervisor of Mr. J5 IMAMUNA. He stated that his immediate subordinate was the Finance Manager. The Appellant further testified that on 29th June, 2011, he asked the Finance Manager to give him reconciliations and the remittance book as well as bank statements. He stated that he discovered that there were collections which were recorded in the remittance book but were not appearing on the bank statements. He immediately brought this to the attention of RW1. He also lodged a report with the police. He told the lower Court that later that day, the Managing Director instructed all staff from Finance Department, apart from himself, to go on leave in order to facilitate investigations. He stated that the Managing Director instituted investigations through the office of the Chief Internal Auditor. These investigations led to his suspension from work on 15th July, 2011. He stated that he could not discipline any of his officers because RW1 had sent them away on forced leave and only lifted the said leave after he had suspended the Appellant. In its defence, the Respondent called three witnesses, namely RWl; Mr. Wisdom KABE, Chief Internal Auditor (RW2); and Mr. J6 Majumo KHUNGA, Chairperson of the Disciplinary Committee (RW3). The gist of the evidence given on behalf of the Respondent was that the Appellant was dismissed on the ground that he was unable to satisfactorily perform the function of Director of Finance. They asserted that the Respondent adhered to its disciplinary procedures before dismissing the Appellant. According to RWl, he imputed negligence on the Appellant as head of department because he had failed to identify and charge the officers that were responsible for the misappropriation of the funds In Issue. On the evidence before it, the Industrial Relations Court found as a fact, that the Sales Cashier and the Beat Forester informed the Finance Manager, on several occasions, that Mr. IMAMUNAhad not been banking revenue. The Court found that the Finance Manager reacted casually to the reports because he did not insist on the immediate banking of the money. That he appeared content to wait for IMAMUNAto bank the money at his pleasure. It also found that the Finance Manager did not inform the Appellant about this state of affairs until it was too late. J7 The lower Court, however, said that the Appellant gave conflicting statements in his exculpatory letters in response to the charge. The Court applied the doctrine of res ipsa loquitor to hold that the Appellant was negligent. In its view, if the Appellant had exercised proper care, in ensuring that Mr. IMAMUNA was supervised, he would not have delayed in banking the money or stolen it. The Court, therefore, held that the disciplinary committee properly found that the Appellant was negligent. The Court went on to observe that the Acting Finance Manager and the Financial Accountant were equally negligent in the supervision of their subordinates and that it was surprising that they were spared the rod. It stated that the two were very semor officials whose due diligence would have avoided the lapses and possibly the loss of money. On the Appellant's allegation of discrimination, the Court found that there was no evidence to support the allegation. The Appellant has now appealed to this Court, against the decision of the Industrial Relations Court, on the followinggrounds: 1. "that the Honourable Deputy Chairperson erred in law and in fact when he failed to recognize that the charge of negligence brought against the Appellant did not lead to loss of funds, was unfounded and contrary to the Appellant's contract of service and that J8 dismissing the Appellant's complaint was contrary to the evidence adduced before court; 2. That the Court below erred in law and fact when it heavily relied on the evidence adduced in the disciplinary hearing committee instead of adjudicating on the evidence before him as a competent court of original jurisdiction and also when he allowed a charge against the Appellant based on a draft audit report and which lacked particulars of the alleged negligence. 3. That the Court below erred in law and fact when it dismissed the and of of adjudicating on the particulars and without harshness evidence amidst case Complainant's discrimination negligence; and 4. The Court below erred in law by dismissing the Appellant's complaint without having regard to the Respondent's evidence and the complainant be paid his accrued benefits (Le. submissions that withheld salaries, leave days and accrued gratuity) and without adjudicating on the issue of those admitted payments." In support of these grounds of appeal, the learned Counsel for the Appellant, Mr. KASONDEfiled written heads of argument on which he entirely relied. On the first ground of appeal, Mr. KASONDEargued that the Appellant's dismissal from employment was wrongful because hedid not breach his contract of employment to warrant the charge of negligence and his consequent dismissal. To augment this submission, Counsel referred us to the case of ROLAND LEON NORTON V. NICHOLAS LASTRON(1 ),where the Court held:- is bound by it even though "It is trite law that a party to a contract it may not have been in the interest of the party entering into the contract. Even a bad contract, if it is valid, is binding." J9 The submission of Counsel is that the Appellant did not breach his contract of employment. That the evidence on record established that it was the cashier who stole the money and his immediate supervisor was the Financial Accountant. That In the circumstances, it is the Financial Accountant who should have been charged. Counsel contended that the supposed negligence could not be said to have led to the loss of the Respondent's funds because the alleged failure by the Appellant to identify and charge the erring officers was said to have happened after the money had already been misappropriated. On the allegation of discrimination, Counsel submitted that the Appellant's dismissal was discriminatory and unlawful because only the Appellant was charged and dismissed. According to him, everyone else, including Mr. IMAMUNA,was spared and they continued working. Mr. KASONDE contended that RWI charged the Appellant contrary to the recommendations made by the Auditors. He stated that the Auditors recommended that the Financial Accountant be no charged with negligence or failing to supervise his juniors. Counsel submitted that the fact that the Appellant, as Director, had put in place policy measures to ensure that there were sufficient internal controls showed that there was no negligence on his part. He argued that accordingly, the doctrine of res ipsa loquitor did not apply to the facts of this case because there was no negligence on the part of the Appellant. With regard to the second ground of appeal, Mr. KASONDE submitted that the Industrial Relations Court erred in law and in fact when it heavily relied on the evidence adduced before the disciplinary committee instead of adjudicating on the evidence before it as a competent Court of original jurisdiction. Further, that the authenticity of the proceedings of the said disciplinary committee had been contested by the Appellant. That the lower Court also misdirected itself when it upheld the dismissal of the Appellant based on a draft audit report which lacked particulars of the alleged negligence. To support his submissions, he referred us to the case of ZESCO LIMITED V. D. L. MUYAMBANGOI2 ), where we said that:- J11 "It is not the function of the Court to interpose itself as an appellate tribunal within the domestic disciplinary procedures to review what others have done. The duty of the Court is to examine if there was the necessary disciplinary power and if it was exercised properly." Coming to the third ground of appeal, Mr. KASONDEstated that the trial Court rightly found that the Finance Manager, Mr. MUKUKA, and the Financial Accountant, Mr. ZYAMBO, were equally negligent in the supervision of their subordinates. In his view, having made this finding, the lower Court erred when it proceeded to hold that the Appellant did not adduce any evidence of discrimination. According to him, the fact that the Appellant was disciplined on the basis that he was the Director of Finance Department was itself discriminatory. Counsel went on to argue that the disciplinary charge leveled against the Appellant by the Respondent was bad because RWI did not provide dates and particulars of the charge. To support this argument, Counsel referred us to the case of BANK OF ZAMBIA V. KASONDEI31, where we said that- "Wehave seriously considered the evidence and the judgment in the Court below and the submissions before us. Looking at the evidence before the Court below, we cannot fault the findings of the learned trial Judge that the allegations against the Plaintiff were not proved. Even the charge of dishonest conduct lacks particulars and details to enable anyone defend himself. It does not give the date(s) of misconduct and what that misconduct was." H2 With regard to the fourth ground of appeal, Mr. KASONDEhas faulted the lower Court for having omitted to award the Appellant withheld salaries, leave days and accrued gratuity. These claims, according to Counsel, were admitted by the Respondent. On the quantum of damages, Counsel prayed for a liberal amount of damages in the range of 12 months' salary to 36 months' salary. He based this prayer on the cases of ZAMBIA AIRWAYS CORPORATION LIMITED V. MUBANGAI4), where we awarded 12 months' salary as damages; JOSEPH CHINTOMFWA V. NDOLA LIME(51, where we awarded 24 months' salary as damages; and ZAMBIA RAILWAYS LIMITED V. OSWELL SIMUMBAI6), where we awarded 36 months' salary as damages. In response to the Appellant's heads of argument, the learned Counsel for the Respondent, Mr. SONGOLO,filed written heads of argument on which he relied entirely. On the first ground of appeal, Counsel submitted that the decision of the lower Court to dismiss the Appellant's complaint was firmly premised on the fact that the Appellant had failed to diligently execute his duties under his contract of employment. He contended that the Appellant's job purpose required him- J13 "To direct, plan, control and manage financial resources and to provide management with accurate, comprehensive and timely financial accounting information, data for planning and decision making." Mr. SONGOLO argued that the word 'directing' involves delegating tasks, motivating staff, coordinating activities, managing differences and managmg change. For the definition of 'controlling', he referred us to a book titled 'MANAGEMENTtlal, where the authors have stated that 'controlling' means monitoring employees' activities, determining whether the organization is on target towards its goals and making corrections if necessary or as needed. Counsel conceded that the Appellant did put in place internal controls in the collection of cash sales. He, however, asserted that having put control measures in place, the Appellant went into deep sleep and allowed the system to 'self-police or regulate and to be based on trust'. He submitted that although the Respondent did not expect the Appellant to supervise the thieving Cashier, it expected him to ensure, through his immediate subordinate, the Finance Manager, that the Cashier was doing his job properly. Counsel stated that the decision by RW1 to charge the Appellant for negligence of duty was not premised solely on his J14 failure to charge the officers responsible for the loss of the funds. According to him, the said decision was based on the fact that the Appellant had not cared for the Respondent's funds. To support his submissions, he cited the case of ZCF FINANCE SERVICES LIMITED V. HAPPY EDUBERT PHIRII71 , where we said that- "Whenlooking at the evidence and even the losses looked at, in our view it is unavoidable to conclude that the Plaintiffs conduct was far below the standard expected of a chief executive. We are further inclined to agree that the evidence showed some reckless decisions thus by the plaintiff, decisions that lacked economic calculation, leading to defendant company incurring staggering losses. ... We hold the view that on the evidence before us, the learned trial Judge should have accepted the Board's decision to dismiss the plaintiff. We therefore uphold the appeal." Responding to the second ground of appeal, Mr. SONGOLO submitted that the Industrial Relations Court was on firm ground when it relied on both the evidence adduced at the disciplinary hearing and the evidence adduced before it. According to Counsel, the Industrial Relations Court, being a Court of substantial justice, is not barred from considering the proceedings of a disciplinary committee. For this argument, Counsel referred us to the case of BARCLAYS BANK ZAMBIA LIMITED V. MANDO CHOLA AND IGNATIUS MUBANGA(81, where we held that- "In the process of doing substantial justice, there is nothing in the Act to stop the Industrial Relations Court from delving behind or J15 into reasons given for termination of contract to redress any real injustice discovered." On the lower Court's finding of negligence against the Appellant, Mr. SONGOLOcontended that the lower Court properly applied the principle of res ipsa loquitor because the Appellant had admitted in his testimony that his department was not well managed. According to him, the non-banking of the huge amount of money for a period of over a month clearly indicated that there was negligence on the part of the Appellant. Counsel went on to submit that this ground of appeal has largely attacked findings of facts by the lower Court. That this Court has, on several occasions, frowned upon appeals that are purely targeted at findings of fact by the trial Court. He cited one such case as that of COMMUNICATIONS AUTHORITY V. VODACOM ZAMBIAi9i, where we said that:- "The 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 misapprehension of the facts or that they were findings which, on a proper view of the evidence, no trial Court acting correctly, can reasonably make." With regard to the third ground of appeal, Mr. SONGOLO contended that the Court below was on firm ground when it held J16 that the Appellant was not discriminated against. He submitted that the Appellant did not prove discrimination as envisaged by section 108(1) and (2) of the INDUSTRIAL AND LABOUR RELATIONS ACTli ) (hereinafter referred to as "the Act"), which provides as follows: (1) No employer shall terminate the services of an employee "108. or impose any other penalty or disadvantage on any employee, on religion, political opinion or grounds of race, sex, marital status, afil1iation, tribal extraction or status of the employee. the (2) Any employee who has reasonable cause to believe that employees' services have been terminated or that the employee has suffered any other penalty or disadvantage, or any prospective the employee employee who has reasonable cause to believe that has been discriminated against, on any of the grounds set out in subsection (1) may, within thirty days of the occurrence which gives rise to such belief, lay a complaint before the Court: ...." Counsel submitted that no evidence was led to prove discrimination on any of the grounds listed in the Act. That the Appellant was rightly penalized for breaching his contract of employment as a result of which the Corporation lost huge sums of money. Counsel referred us to the case of POSTS AND TELECOMMUNICATIONS CORPORATION LIMITED V. PHIRI(lO), in which we held that discrimination, generally, can never give rise to an order of compensation or reinstatement under the ACTli ). He also cited the case of NGWIRA V. ZAMBIA NATIONAL INSURANCE BROKERSlll ), where this Court held that there is nothing improper J17 with punishing a senior member of an organization more severely on the grounds that he should be setting an example to others. On the contention by the Appellant that the particulars of the charge were not clear, Mr. SONGOLOsubmitted that this was not fatal to the Respondent's case because the Appellant was aware of the particulars of the charge at the commencement of the disciplinary hearing. Counsel stated that the details of the charge were sufficiently explained in the charge letter written by RWl to the Respondent. He distinguished the facts of the case of BANK OF ZAMBIA V. KASONDE(3) from the facts of this case. In his view, unlike the position in the KASONDE(31 case, in the instant case, the Appellant was able to defend himself based on the detailed charge letter. Lastly, on the fourth ground of appeal, Counsel submitted that the claim by the Appellant for damages is misconceived because there is no ground of appeal relating to damages. He argued that in any case the Appellant is not entitled to damages because he was rightly dismissed by the Respondent. He contended that contrary to the submission by Counsel for the Appellant, there were no special circumstances in this case to justify an award of damages similar to Jl8 those made in the JOSEPH CHINTOMFWA(5) and the ZAMBIA AIRWAYS CORPORATION(4) cases. With regard to the Appellant's claim for withheld salaries, accrued leave pay and gratuity, Counsel argued that, although the Respondent admitted that the said payments were due to the Appellant, given the seriousness of the negligence committed by the Appellant and the colossal sums of money lost by the Respondent, these payments should be applied to offsetting the loss suffered by the Respondent. We have carefully considered the evidence on record, the heads of argument filed by Counsel and the judgment appealed against. Although the Appellant has contested the decision of the Industrial Relations Court under four grounds of appeal, we are of the considered view that this appeal raises one broad issue for our consideration in this matter. This is, whether, the Industrial Relations Court properly directed itself when it dismissed the Appellant's complaint. The kernel of Mr. KASONDE'sargument is that it was unfair for the Respondent to charge and dismiss the Appellant on the basis of an offence committed by a Cashier who was not even under his (Appellant's) direct supervision. On the J19 other hand, Mr. SONGOLOfor the Respondent, has submitted that there was overwhelming evidence of negligence of duty against the Appellant which justified his dismissal from employment. A review of the law on unfair or wrongful dismissal establishes that whether a particular dismissal is unlawful or unfair will depend on whether, in the circumstances of the case, the employer acted reasonably in treating the factor that led to the dismissal of the employee as a sufficient reason for dismissing the employee. The author of 'SELWYN'S LAW OF EMPLOYMENT'(b), has stated that 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 employer before arriving at the decision to dismiss the employee. The second stage is the actual decision taken; whether the employer acted reasonably in dismissing the employee. This Court has had occasion to pronounce itself on these principles. In the case of ATTORNEY- GENERAL V. RICHARD JACKSON PHIRI1 121, we said that- "In a case such as this, the court ought to have regard only to the question whether there was power to intervene, that is to say, the question whether the Public Commission had valid disciplinary powers and, if so, whether such powers were validly exercised .... J20 . , We agree that once the correct procedures have been followed, the only question which can arise for the consideration of the court, based on the facts of the case, would be whether there were in fact facts established to support the disciplinary measures since it is obvious that any exercise of powers will be regarded as bad if there is no substratum of fact to support the same. Quite clearly, if there is no evidence leveled in disciplinary proceedings, injustice would be visited upon the party concerned if the court could not then review the validity of the exercise of such powers simply because the disciplinary authority went through the proper motions and followed the correct procedures." sustain charges to In this case, there is no doubt that the Respondent's disciplinary committee had powers to discipline the Appellant. And it is not in dispute that the Respondent substantially went through its disciplinary procedures before dismissing the Appellant. The issue that remains to be resolved, therefore, is whether the Respondent validly exercised its disciplinary powers; that is, was there a substratum of facts established before the disciplinary committee to warrant the dismissal of the Appellant from employment? The evidence on the record of appeal, in our vlew, establishes that the Respondent did not establish sufficient reasons to warrant the dismissal of the Appellant. The facts of this case, in our view, did not support the Respondent's decision to dismiss the Appellant. It is not m dispute that the theft of the Respondent's funds was committed by a Cashier, named, IMAMUNA. Mr. IMAMUNA J21 . , was not under the direct supervision of the Appellant. According to the evidence on record, Mr. IMAMUNA'simmediate supervisor was the Financial Accountant, a Mr. ZYAMBO. The said Financial Accountant reported to the Finance Manager, A Mr. MUKUKA,who in turn reported to the Appellant. The Court found, as a fact, that the Finance Manager was, on several occasions, informed by the Sales Cashier and the Beat Forester that Mr. IMAMUNAwas not banking funds. The Court also found, as a fact, that the Finance Manager did not inform the Appellant about the reports of non-banking until it was quite late towards the end of June, 2011. In addition, RW1, Frighton SICHONE, the Respondent's Managing Director, admitted, in cross- examination before the Court below, that there was no evidence that the Appellant had participated in the disappearance of the funds. Further, from the proceedings of the lower Court, it is clear that the Respondent did not seriously discredit the Appellant's evidence that he only discovered the non-banking on 29th June, 2011. That following the said discovery, he immediately made efforts to bring it to the attention of RW1. He also secured the J22 , unbanked money that was in Mr. IMAMUNA'soffice before lodging a formal complaint with the Police. Further, investigations by the Auditors revealed that the Appellant had put in place proper internal controls in the collection of cash sales. The Auditors found that the weakness was on the part of the supervisor responsible for the Cashiers. That if the said supervisor had effectively played his role, delayed and non-banking of cash would have been discovered in good time. In light of this evidence, we find it difficult to appreciate the reasoning employed by RWI in charging the Appellant for the disciplinary offence of "negligence of duty resulting into loss or damage of corporation property". In his testimony before the lower Court, RW1 stated that he imputed negligence to the Appellant by virtue of the fact that the Appellant was the Director of the Finance Department. He said that if the Appellant saw that the controls were not working he should have proposed remedial measures to management which could have been put in place to avert the theft of the funds. There IS no evidence on record to support RWl's assertion that the control measures were not working. As we have already stated earlier in this judgment, the J23 .• • I Auditors found that the control measures were effective and that the weakness was on the supervisor of the Cashiers. It is also clear from the evidence by RW3 that the Committee proceeded to hear and determine the disciplinary offence against the Appellant solely on the premise that the Appellant was the Head of Department. RW3 told the trial Court that- "From the evidence we heard from the Managing Director which we agreed with Mr. Nyirenda had to be charged because he was heading that Department and as Head of Department he had the responsibility of ensuring that all processes and systems were working. for any In short, he bore the overall responsibility shortcomings in the Department and had to be charged." Mr. SONGOLO has, however, submitted that there was nothing wrong m punishing the Appellant and leaving his subordinates unpunished. To support his submissions, he has cited the case of NGWIRA V. ZAMBIA NATIONAL INSURANCE BROKERS.lll) In that case, the Appellant was charged with negligence resulting in the loss of company property and gross abuse of office. The particulars were that the Appellant, being head of personnel and administration, manipulated the tender procedure for the sale of several company vehicles to some members of staff at unrealistic low prices, thereby occasioning financial loss to the company. A disciplinary committee found that the Appellant was J24 . " guilty as charged and recommended that he be dismissed. The Managing Director, however, changed the punishment to ordinary termination of services, which meant that the Appellant was able to receive some benefits on termination of contract which he would otherwise have lost. Mr. NGWIRAcontended, before the Industrial Relations Court, that he was discriminated against on the ground of social status because none of the other members of the tender committee was dismissed. The Industrial Relations Court refused to order reinstatement of the Appellant and he appealed to this Court. Delivering our judgment, we said, among other things, that- "There is nothing improper in punishing a senior member of an organisation more severely on the grounds that he should be setting an example to others." Unlike the position in the instant case, it was not in dispute in the NGWIRA(ll) case that the Appellant and the other members of the tender committee had manipulated tender procedures to their advantage. The other members were reprimanded for the roles they had played. The facts, in the NGWIRAll case are, therefore, distinguishable from the facts of the case in casu. In this case, the perpetrator of the misappropriation of funds and his supervisor were known. Further auditors who reviewed the internal control J25 ••. 'I • in the collection of cash sales found that there were no weaknesses in the system. The auditors even recommended that the responsible supervisors should be charged for failing to supervIse the cashier. The cashier's immediate supervIsor, as alluded to above, was the financial accountant, who in turn, was supervised by the Finance Manager. They were let off the hook. In our view, there was no factual basis for punishing the Appellant at all and leave out the real culprits. An effort has been made to attribute negligence to the Appellant for his failure to charge the cashier over the loss of the money. The Appellant gave an explanation, which, in our view, was plausible. He explained that he could not charge the Financial Accountant or indeed the Finance Manager because RWI had taken up the disciplinary role by sending all members of staff in the Finance Department on forced leave. RW1 only recalled the said staff after he had suspended the Appellant. Evidently, it was not practicable for the Appellant to charge either the Financial Accountant or the Finance Manager or both. As stated above, it IS on record that the Auditors recommended, among other things, that "The responsible J26 '.'. . supervisor should be charged for negligence for failing to supervise the Cashier HQ properly which has resulted in the loss of 785.1 million by the corporation". Contrary to this recommendation, RW1 decided to charge the Appellant and reinstated the Finance Manager and the Financial Accountant. We do not see any fairness in that. In fact, the lower Court found as a fact that the Finance Manager and the Financial Accountant were equally negligent in the supervision of their subordinates. The Court expressed surprise as to why the two were not subjected to any disciplinary action despite the fact that they, too, were very senior officials whose due diligence would have avoided the lapses and possibly the loss of the funds. We, therefore, are of the view that the Appellant was unfairly dismissed. On the authority of our decision in the case of RICHARD JACKSON PHIRI(12), we hold that although the Respondent had valid disciplinary powers over the Appellant, the said powers were not validly exercised. The Respondent did not establish a substratum of facts to support the disciplinary measures taken against the Appellant. In our view, there was clearly no evidence to sustain the charge leveled against the Appellant and to justify his J27 l"l • consequent dismissal from employment. We therefore find that the Appellant was wrongly dismissed. Coming to the claim for damages, we have looked at a number of decided cases on principles for assessment of damages for wrongful dismissal. In particular, we have taken into account our decision In the case of SWARP SPINING MILLS V. SEBASTIAN CHILESHE AND 30 OTHER1131, where we said that- "In assessing the damages to be paid and which are appropriate in each case, the court does not forget the general rule which applies. This is 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. However, the normal measure is departed from where the circumstances and the justice of the case so demand. For instance, the termination may have been inflicted in a traumatic fashion which causes undue distress or mental suffering.... " In the instant case, the contract of employment between the Appellant and the Respondent contained a termination clause. Clause 5 of the said contract provided as follows: "That the Employee shall hold the said office until his appointment shall be determined by not less than three (3) months' previous notice in writing to that effect given by either of the parties or pay one month's salary in lieu of notice, otherwise until the 1st day of February the year Twenty Thirteen whichever shall first occur." The question is 'would the circumstances of this case justify a departure from the normal measure of damages agreed by the parties in clause 5 of the contract of J28 1iI I" • employment?' In our VIew,the circumstances of this case would justify a departure from the normal award of one month's salary in lieu of notice as damages. As we have stated above, the Appellant was dismissed on the basis of an offence which was not committed by him or by his immediate subordinate but by a Cashier who was not under his direct supervision. The Appellant had absolutely nothing to do with the commission of the offence as he had put in place effective control measures. The Finance Manager, who apparently knew about the non-banking of revenue and did not inform the Appellant, was not disciplined by the Respondent in any way. 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 and perquisites. In addition, we order that the Respondent should pay . to the estate of the Appellant his withheld salaries, accrued leave pay and gratuity for the period the Appellant served up to the date of his dismissal. The damages, withheld salaries, accrued leave pay and gratuity, shall attract interest at the average short term deposit rate J29 •• I' 6. prevailing from the date of the complaint to the date of this judgment, and thereafter, at the current lending rate, as determined by the Bank of Zambia up to the date of payment. We allow the appeal with costs to the Appellant to be taxed in default of agreement. I.e. Mambilima CHIEF JUSTICE A~~ SUPREME COURT JUDGE R~~ K'ao::Z= SUPREME COURT JUDGE ~- BO