Multichoice Zambia Limited v Tutu Zulu (APPEAL NO. 157/2023) [2024] ZMCA 358 (21 August 2024)

IN THE COURT OF APPEAL OF ZAMBIA APPEAL NO. 157/2023 HOLDEN AT NDOLA (Civil Jurisdiction) BETWEEN: MULTICHOICE ZAMBIA LIMITED APPELLANT AND TUTU ZULU RESPONDENT Coram: Kondolo, Makungu, and Chembe JJA On 13t h and 21 st August, 2025 For the Appellant: Mr. Y. Yosa of May and Co For the Respondent: Mr. J. C. Kalokoni of Kalokoni and Company JUDGMENT MAKUNGU JA, delivered the Judgment of the Court. Cases referred to: 1. Swarp Spinning Mills PLC v. Chiles he, SCZ Judgment No. 6 of 2 002 2. Chansa Ng'onga v. Alfred H. Knight (Z) Limited, SCZ Judgment No. 26 of2019 3. The Attorney General v. Richard Jackson Phiri (1988-89) ZR 121 (S. CJ 4. David Banda v. The Attorney General, CAZ Appeal No. 233 of 2020 5. Bikson Jishika v. Barrick Lumwana Mining Company Limited, CAZ Appeal No. 11 7/2017 6. Nora K ayoba and another v. Eunice Ngulube and Another, SCZ Judgment No. 19of 2003 7. Redrilza Limited v. Abuid Nkazi and Others (2011) Vol. I ZR 394 8. Caroline Tomaidah Daka v. Zambia National Commercial Bank (2012) Vol. 3 Z. R 8 Legislation referred t o : 1. The Employment Code, Act No. 3 of 2019 of the Laws of Zambia 2. The Court of Appeal Rules, Statutory Instrument No. 65 of 2016 Authority referred to: 1. https:/ I help. workleap. com. accessed on 13th August 2025. 1.0 INTRODUCTION 1.1 This is an appeal against the judgment of the High Court, delivered by the Honourable Mr. Justice Charles Zulu on 15th March 2023. In that decision, the learned trial Judge found in favour of the respondent, a former employee of the appellant, on a claim of wrongful and unfair dismissal. The trial court awarded the respondent thirty-six (36) months' salary as damages , plus interest. 1.2 In the next three segmen ts of the judgment, the parties will be r eferred to as cited in th e court b elow. Ther eafter , they will be referred to as cited before this Court. 2 .0 BACKGROUND 2.1 The p laintiff, Tutu Zulu commenced proceedings in the High Court by writ of summons and statement of claim dated 13 th January 2021 against his former employer Multichoice Zambia Limited, a company engaged in the p rovision of pay- -J2- television services and decoder repair operations in Zambia, and operates as a subsidiary of Multichoice South Africa Holdings (Pty) Ltd. 2.2 He sought, among other reliefs, a declaration that his dismissal was wrongful and unfair; an award of damages equivalent to thirty-seven (37) months' salary; compensation for mental distress and loss of future earnings, interest, and costs. 3.0 PLAINTIFF'S EVIDENCE 3.1 The brief facts of the matter are as follows: the plaintiff was employed by the defendant on 3 rd August 2010, and rose through the ranks to the position of Decoder Repairs Manager in 20 18 . His employment was permanent and pensionable. His duties included repairing decoders , answering technical queries, ordering spare parts, and supervising technicians. 3.2 On 24th July 2020, the plaintiff was charged with poor performance and was subjected to a disciplinary hearing held between 5 th and 6 t h August 2020. He was subsequently dismissed from employment on 9 th September 2020. An internal appeal to the Managing Director on 15th September 2020 was unsuccessful. -J3- 3.3 The crux of the plaintiff's complaint was that his dismissal was not premised on genuine performance failings, but rather on systemic procurement failures introduced by the defendant's adoption of a centralised software system called System Application Progress (SAP) , managed by the Corporate Office in South Africa (COSA) . SAP was a centralized system of storing information for all subsidiaries of the defendant company all over Africa. He contended that this system fundamentally impaired his ability to perform his functions due to delays and inefficiencies in the ordering of decoder spare parts. 3.4 The plaintiff gave a detailed account of his employment history with the defendant, noting that h e had n ever been cited for poor performance until 2 019. He sta ted tha t the poor performance allegations arose coincidentally with the company's transition to the Systems, Applications and Products in Data processing (SAP) system , which created substantial logistical and operational bottlen ecks. 3.5 He explained that the SAP system required that all decoder spare parts b e ordered through the Corpor a te Office in South Africa, and only from pre-approved vendors listed on the SAP platform. As a r esult, many usual suppliers were rendered -J4- unavailable due to non-registration, and spare parts orders were subject to delays ranging from six months to two years. He itemised several technical and procedural hindrances, including the absence of configured material codes and the unavailability of certain suppliers on the system. 3.6 The plaintiff stated that he raised his concerns about the new system in writing on 27th August 2019 and received a response on 30th August 2019 from the Corporate Office outlining remedial steps. However, the procurement challenges persisted. He also highlighted that faulty decoders previously incinerated in Namibia continued to appear as pending repairs on the SAP system. He provided evidence that approval for their removal from the system was granted on 15th July 2020, a month before his dismissal. 3. 7 According to the plaintiff, the real source of inefficiency was the SAP system, not his managerial conduct. He a sserted that he was improperly placed on a Performance Improvement Plan (PIP) in June 2019 despite receiving a performance rating of 3 points which, under company policy, did not warrant PIP placement. -JS- 4.0 DEFENDANT'S EVIDENCE 4. 1 On the other hand, the defendant led evidence from two witnesses. DWl , Ms. Recha Karima Kabwe , the Head of Operations Support, and DW2, Florence Bwembya, the Human Resources and Business Partner of the defendant. 4.2 DWl confirmed that the pla intiff was responsible for the ordering of spare parts and reporting. She stated that the plaintiffs performance began to deteriorate in 2019 and that he was provided with the requisite tools and budget to perform his duties. She denied that his performance decline was attributable to the SAP, asserting instead that his inaction caused decoder repair delays. 4.3 DWl acknowledged the challenges presented by the SAP, which had inter alia discontinued the in-country team ordering directly from the manufacturers, but maintained that the plaintiff was not limited to a narrow pool of vendors a nd could still have sourced parts from elsewhere. She confirmed that both she and another manager made follow-ups on delayed orders and described the company's efforts to assist staff with understanding SAP. 4.4 DW2 explained that the plaintiff was placed on a second Performance Improvement Plan (PIP) in May 2020, following a -J6- further decline in his performance rating to below a 3-point rating scale. She stated that the PIP was designed for employees whose overall performance rating fell below 3 after a formal evaluation review. However, the second PIP was prematurely terminated due to the commencement of disciplinary proceedings, which led to the p laintiff's dismissal. 4.5 She outlined the key findings of the disciplinary panel, which included the plaintiffs failure to meet decoder repair targets , lack of ownership in departmental engagement, ineffective delegation of tasks, and poor management of spare parts procurement. 4 .6 DW2 further testified that the plaintiff received his full terminal benefits upon dismissal, including a pension payout of K250,000.00 and salary arrears of K22 ,338.20. 5.0 DECISION OF THE LOWER COURT 5.1 Upon reviewing the evidence on record , the trial J udge found that while the dismissal followed procedural steps, the substantive j ustification for the plaintiff's termination was not established. 5.2 He h eld that the alleged poor p erformance stemmed from systemic procurement failures under the SAP system, -J7- challenges which were beyond the plaintiff's control and equally affected his supervisors. 5.3 The trial Judge further held that the disciplinary charge was improperly framed and that the dismissal violated the defendant's disciplinary code, which required prior offences before dismissal could be imposed. Since no such record existed, the Judge concluded that the dismissal was both ·wrongful and unfair, as it punished the plaintiff for ins ti tu tional shortcomings. 5.4 The trial Judge , therefore , awarded the plaintiff 36 months ' salary as damages, but declined to grant additional claims for mental anguish and future loss due to a lack of sufficient evidence. 6 .0 GROUNDS OF APPEAL 6 . 1 Discontented with the lower court's decision, the appellant has appealed, advancing the following four grounds of appeal: a) The Court below erred in law andfact when it held that this was a fit and proper case to award damages outside the nominal measure of damages and proceeded to award t he respondent 36 months' salaries as damages; b) The learned trial Judge erred in law and fact when he held that the respondent's dismissal was -J8- wrongful and unfair on the basis of inferences that were not supported by evidence; c) The learned trial Judge erred in law and fact when he held that the respondent's dismissal was wrongful on the basis that the power to impose a dismissal was ultra vires when the poor performance procedure provided for dismissal for poor per/ ormance after a poor per/ ormance hearing; and d) The learned trial Judge erred in law and fact when he held that the respondent's dismissal was ill motivated and that there was a lack of evidence to substantiate the allegations against the respondent more so in the face of admissions as to poor performance by the respondent and evidence provided by the appellant. 7.0 APPELLANT'S HEADS OF ARGUMENT 7 . 1 The appellant's heads of argument were filed on 24th July 2023. In support of the first ground of appeal, counsel argued that the learned trial Judge erred in departing from the normal measure of damages without valid justification. It was contended that the court relied solely on the inefficiency of the SAP system to award 36 months' salary, ignoring settled principles in Swarp Spinning Mills v. Sebastian Chileshe & 3 Others, 1 and Chansa Ngonga v. Alfred H. Knight (Z) -J9- Limited, 2 which underscore that departure from the normal measure of damages, usually linked to contractual notice periods, is only warranted where the employer's conduct causes exceptional hardship or the employee establishes entitlement to more. Counsel submitted that the lower court found no mental anguish or loss of future earnings, nor did the respondent adduce evidence on the scarcity of comparable employment opportunities. This, it was argued, rendered the award unjustifiable. 7.2 On the second ground, counsel submitted that the trial Judge wrongly held that the respondent was dismissed for a single charge relating to spare parts management, when in fact the charge sheet cited five instances of poor performance, including subpar team performance metrics, ineffective delegation , delayed reporting, and inventory mismanagement. It was argued that the court below focused narrowly on the SAP system inefficiencies without evaluating the respondent's own admissions, both during the disciplinary hearing and in cross-examination, regarding his performance shortcomings. On that basis, it was submitted that the dismissal was neither wrongful nor unfair. -JlO- 7.3 Regarding the third ground of appeal, the appellant's counsel contended that the disciplinary process was lawfully undertaken under two interrelated documents: the Poor Performance Procedure Policy and the Disciplinary Code. The court below was faulted for dismissing the Poor Performance Policy on grounds that it lacked an express sanctioning provision, despite paragraph 5.3 of that policy clearly stating that a poor performance h earing could lead to dismissal. Counsel further relied on the case of The Attorney General v. Richard Jackson Phiri, 3 where the Supreme Court held 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 any exercise of powers will be regarded as bad if there is no substratum of fact to support the same." 7.4 Based on this authority, he contended that the disciplinary panel had both valid jurisdiction and h a d exer cised its p owers in accordance with established procedure . 7.5 Under the fourth ground, counsel submitted that the trial Judge unduly fo cused on perceived flaws in the dismissal process without properly evaluating whether the respondent -Jl 1- had discharged his burden of proof. The judgment, it was argued, was one-sided, overlooked material evidence , and failed to assess the cumulative instances of poor performance that had been laid before the court. 7. 6 Counsel thus urged this Court to find that the dismissal was neither wrongful nor unfair and to set aside the award of damages. 8.0 RESPONDENT'S HEADS OF ARGUMENT 8 . 1 In the respondent's heads of argument filed on 24 th June 2024 it is stated as follows: 8 .2 In response to the first ground of appeal; that the award of 36 months ' salary was justifiable and should be increased to 42 months' salary. It was argued that the dismissal was not only wrongful but carried a contumelious disregard for the respondent's employment rights. The dismissal was premised on the company's systemic failures, particularly the malfunctioning of the SAP procurement system, which the respondent had been transparent in highlighting. Rather than addressing those failures, the appellant chose to penalise the respondent under the guise of poor performance. 8.3 Counsel argued that the punitive action was disproportionate , as the disciplinary code prescribed a written warning for a first -J12- instance of poor performance. Further, the respondent had occupied a specialised role that was scarce in the labour market, which made it difficult, if not impossible, for him to secure similar employment, particularly in Zambia's current economic climate. Reliance was placed on the decision in David Banda v. The Attorney General,4 where this Court awarded 42 months' salary on account of procedural breaches and diminished future employability. Counsel argued that the present case, mirrored those considerations. 8.4 In response to the second ground, counsel submitted that the charge of poor performance was a mere fac;ade. Citing the case of Bikson Jishika v. Barrick Lumwana Mining Company, 5 counsel emphasized the distinction between wrongful dismissal, which involves a breach of contractual terms , and u nfair dismissal, which flows from a violation of statutory obligations. Further support was drawn from The Attorney General v. Richard Jackson Phiri, 3 where the Supreme Court held that in wrongful dismissal cases, the inquiry must consider both procedural compliance and the evidentiary basis for the dismissal. It was contended that the lower court rightly found that the alleged poor performance stemmed from external factors, namely, procurement delays that were -J13- beyond the respondent's control and attributable to the SAP system. 8.5 Counsel further submitted that, the argument by the appellant that the trial court mischaracterized the charge was unfounded. He maintained that the charge comprised one count of poor performance, supported by five particulars, and that the court properly evaluated all of them in context. The real issue, it was submitted, lay in the lack of tools and resources that rendered the respondent incapable of executing his duties, a fact acknowledged by the appellant's own witnesses. 8.6 On the third ground of appeal, counsel supported the trial court's finding that the dismissal was ultra vires, as it contravened the applicable disciplinary code, which only permitted a reprimand for a first offence. It was argued that the Poor Performance Procedure (PIP) was merely a policy document, lacking any express disciplinary sanctions, and could not lawfully be used to justify dismissal. Counsel cited Sections 49 and 50 of the Employment Code Act, 1 which obligate employers to rely on their internal disciplinary code, not policies lacking procedural safeguards, when disciplining employees. -J 14- 8. 7 It was further submitted that the respondent had been improperly placed on PIP, despite scoring a performance rating of 3, which, under the appellant's own criteria, denoted an "overachiever." This contradiction undermined the legitimacy of both the disciplinary process and the rationale for dismissal. 8.8 In addressing the fourth ground, counsel rejected the assertion that the trial court based its judgment on imagined factors . Instead, it was contended that the court properly found that the SAP system dysfunctionality and procurement delays, not employee neglect, were the true causes of the performance issues. The evidence on record , including the respondent's earlier letter of complaint and cross-examination of DW 1, demonstrated that the respondent was hampered by structural failures rather than incompetence. 8. 9 Counsel concluded that the respondent's dismissal was both wrongful and unfair, grounded in a misapplication of internal policies. 9.0 REPLY 9.1 In the reply filed on 24 th July 2023, the appellant argued that the respondent's prayer for an increased award of damages was improper as no cross-appeal was filed under Order X, Rule 11 of the Court of Appeal Rules . Even if it had been, -J15- • the respondent could not depart from his pleadings, which specifically claimed 37 months' salary. The case of Nora Kayoba v. Ngulube, 6 was cited in support of the principle that parties are bound by their pleadings. 9.2 Counsel reiterated that this was not a proper case for departure from the standard measure of damages. He argued that the case of David Banda cited by the respondent was distinguishable from this case, as it involved prolonged unemployment and emotional distress, factors which are not present in this case. In the present case, the respondent was dismissed for poor performance after two failed PIPs, and no evidence of mental distress or job scarcity was presented. 9. 3 The arguments of the second ground of appeal were a repetition of the main arguments, and we shall not rehash them. 9.4 On the third ground, it was argued that poor performance was governed by the Performance Planning Policy (PPP), a specific policy that took precedence over the general Disciplinary Code. The dismissal was done in line with the PPP and was not ultra vires. 9.5 Regarding the fourth ground, reliance was placed on the case of Redrilza v . Nkazi,7 which requires evidence of malice to -J16- , • justify judicial scrutiny behind the reason for dismissal. It was argued that in casu, no such evidence was led. The appellant had addressed the respondent's complaints about the SAP system, and under cross-examination, the respondent admitted to failing performance targets. As such, the trial court's finding lacked evidential support. 10.0 HEARING OF THE APPEAL 10.1 When we heard the appeal on 13th August 2025, counsel for both parties adopted their respective written heads of argument, with brief oral submissions highlighting the crux of the dispute. 10.2 For the appellant, Mr. Yosa emphasized that the trial court erred in holding that the dismissal was unsubstantiated and in disregarding the procedure under the Poor Performance Policy. He maintained that performance issues complained of before 30th August 2019 had been resolved, and the respondent's subsequ ent underperformance , despite being placed on two poor performance plans, justified a dismissal. 10.3 Conversely, Mr. Kalokoni, counsel for the respondent, attributed the alleged poor performance to the SAP system failures and argued that the Poor Performance Policy was -Jl 7- merely a policy document, with th e Disciplinary Code prescribing only a written reprimand for first offenders. 10.4 In reply, Mr. Yosa contended that the Poor Performance Policy formed part of the respondent's conditions of service, stating that, accordingly, the two poor p erformance plans amounted to two written warnings, warranting a dismissal. 11.0 ANALYSIS AND DETERMINATION 11.1 We have prudently examined the record of appeal and the exhaustive arguments advanced by both counsel. Grounds two to four, which question the documents under which the respondent was dismissed and the findings of wrongful and unfair dismissal, are interrelated and will be considered first. Ground one, which challenges the quantum and basis for the award of damages , will be addressed thereafter. Grounds two, three, and four 11 .2 The starting point in assessing whether the dismissa l was wrongful or unfair is to determine if the appellant complied with both the contractu al and statutory requirements governing termination of employment. 11.3 In Bikson Jishika v. Barrick Lumwana Mining Company Limited, 5 this Court h eld that: -J l 8- "There are only two broad categories of dismissal in law: it is either wrongful or unfair. Wrongful referring to breach of contract of employment, or unfair, referring to breach of statutory obligations." 11 .4 In The Attorney General v . Richard Jackson Phiri, 3 the Supreme Court guided that where wrongful dismissal is pleaded, the Court may inquire not only into whether the procedure leading to dismissal was followed , but also wh ether the exercise of disciplinary powers was supported by evidence. 11.5 In this case, the respon dent was charged with one count of poor performance, with the particulars outlining five performance-r elated shortcomings as seen on the charge sheet as follows: 1. Decoder Repairs Team Office vibe participation Office vibe participation score for decoder repairs team- 67% achieved for the year versus the target set of 80% and above. 2. Decoder Repairs per Technician per day Repaired decoders per technician per day 13 achieved vs target of 15 decoders repaired per day per technician and SAP process not being followed for repairs . 3 . Spares ordering/ Management Lack of proper Management of Spares; Ordering in line with budget Delayed spares ordering -J19- Inventory management 4. Reporting Inconsistent decoder Repairs weekly and monthly reports submissions to Head of Operations and Managing Director (monthly} 5. Delegation Holds back information from team members to a point where when he's not around, his team do not seem to be in sync with the dept. To begin sharing more of the department issues with the team so that the burden on him reduces. Delegating tasks so that you have more time to focus on operational function of the department. 11.6 The disciplinary proceedings culminated in his dismissal following a finding of unsatisfactory performance. 11.7 From the evidence, it is undisputed that the respondent's duties involved ordering, repairing, and managing decoder spare parts, reporting, and team supervision . It is further not in dispute that a n ew centralized procurement system, SAP, was introduced, creating bottlenecks in spare part acquisition, a process beyond the respondent's control. Notably, DWl , the respondent's supervisor, conceded during cross-examination that she also faced challenges with procurement under SAP. This concession corroborates the respondent's consistent claims that institutional deficiencies, rather than persona l shortcomings, were responsible for the alleged poor -J20- performance. He further raised the challenges of the SAP system with management. 11.8 The appellant's counsel, however, argued that after the respondent raised the challenges relating to the SAP, a solution was offered by the appellant, and there was no evidence to show that after 30 th August 2019, the respondent still faced the same challenges. 11. 9 It is clear from the record that the respondent was twice placed on a Performance Improvement Plan (PIP) despite h aving achieved a performance rating of 3, which, by the appellant's policy, denotes "overachievement." DW2, the Human Resource Partner, failed to offer a satisfactory explanation for placing the respondent on the first PIP under those circumstances. 11.10 At page 121 of the record is an email from Nchimunya Hachandi to the respondent dated 15th July 2020, indicatin g that the removal from the system of all faulty decoders sent to Namibia for incineration was requested by the respondent and approved. The r espondent's e-mail dated 14th July 2020 indicated that thousands of faulty decoders were included in the SAP, and yet they had been physically moved to Namibia. We note that this was barely a month before the dismissal. This supports the trial court's inference that the p erformance -J21- management process was not only irregular but possibly tainted with u lterior motives. 11.1 1 In addition, one of the particulars of the offence related to a perceived lack of "office vibe." The definition of Officevibe, according to the website Officevibe HR lineup, is "a cloud based platform designed to help businesses and organizations improve their employee engagement and overall company culture." The platform provides a suite of tools to measure and track employee satisfaction and well being as tools to foster communication and collaboration within teams. 11 .12 The trial Judge found, as a fact, that the said concern had been raised by the respondent himself on 27 th April 2020. This was confirmed by DW 1 during cross-examination, who also conceded that there was no evidence that the Human Resources Department took any steps to resolve the issue. We therefore find no basis to tamper with this finding of fact by the trial court. 11.13 We also find no fault with the trial court's finding that, although the respondent was charged with poor performance, the appellant failed to distinguish between deficiencies attributable to the respondent and those stemming from -J22- institutional failures. It is unreasonable for an employer to cite an employee's non-performance when the requisite tools , resources, and systems necessary for the discharge of duties are unavailable due to internal inefficiencies. 11.14 The appellant further submitted that the respondent was dismissed according to the Poor Performance Procedure (PPP) , which under clause 5.3 allows for dismissal. However, the charge letter invoked the Disciplinary Code, not the PPP. It is clear from the charge sheet on page 155 of the record that the charge was based on the Disciplinary Code . 11.15 Counsel for the appellant argued that the PPP formed part of the respondent's conditions of service, and that two poor performance plans served as written warnings which would result in a dismissal. 11 .16 As the trial court rightly observed, although clause 5 .3 of the PPP mentions dismissal, the policy itself lacks specific penalty provisions. Conversely, the Disciplinary Code prescribes a defined procedure and corresponding penalties for each breach. We agree with the trial Judge's finding that the imposition of the ultimate penalty of dismissal was ultra vires in the circumstances, particularly given that the Disciplinary Code under clause 18.1.1 (1) (see page 187 of the record), -J23- stipulates a written reprimand for a first breach, for 2nd breach a first written warning and the 3 rd breach a final written warning and the 4 th breach a discharge. 11 .17 \Ve also accept the trial court's finding that the written warning issu ed under the PIP, an administrative policy, could not substitute for a disciplinary warning under the Disciplinary Code, as he was charged under the Disciplinary Code. The PIP was not a disciplinary process and therefore could not form the basis for escalating penalties under the Discip linary Code. 11. 18 A fair disciplinary process requires that an employee b e properly informed of the charge against them , the applicable rules or policies underpinning that charge , and the potential consequences thereof, to adequately prepare a defence. 11.19 Further, in Caroline Tomaidah Daka v. Zambia National Commercial Bank, 9 the Supreme Cou rt clarified that: "... in considering whether or not there was unfair dismissal the merits and demerits of dismissal must be determined. That is to say, are the reasons given for the dismissal just?" -J24- 11.20 Having considered the evidence and the applicable law, we are of th e view th at th e respondent was dism issed followin g a process that relied on conflicting procedures, and u ltimately penalized ~l:i:' 1 ". for certain failures arising from the SAP, which were beyond his control. 11.21 Accordingly, we find no merit in grou nds two , three , and four. The trial Judge was on firm ground in holding that the resp ond ent's dism issal was both wrongful and u nfair in the circumstances. Ground one 11.22 \Ve now turn to th e question of wh ether the learned trial Judge erred in departing from the normal measure of damages. 11.23 As held in Swarp Spinning Mills v. Sebastian Chileshe and 3 Others, 1 the normal measure of damages for wrongful dismissal is pay in lieu of notice or the contractually stipulated notice period. However , the Court may depart from the norm in exceptional cases as justice requires. 11.24 Th is position was reaffirmed in Chansa Ngonga v. Alfred H. Knight (Z) Limited, 2 where the Supreme Court held that the court m ay award higher damages where the dismissal inflicted undue distress or where the conduct of the employer was sufficiently reprehensible. -J25- • 11.25 On page J29 of the judgment, the lower court justified the award as follows: "I am fortified that this is a fit and proper case in which to award damages outside the normal measure of damages. As earlier noted, the plaintiff was principally dismissed on unconscionable grounds. On grounds that were not the fault of the plaintiff but of the employer's to provide an enabling environment by making the SAP user friendly, especially to the plaintiff's department. Instead, the plaintiff's openness to expose the systemic failures of the SAP earned him a dismissal under the fa9ade of poor performance. Additionally, given the scarcity of the job the plaintiff was doing in the labour market, comparably, an award of 36 monthly salary is fair and reasonably adequate for wrongful and unfair dismissal." 11.26 \Ve cannot fault the Judge for his reasoning; thus, the appellant's submission that the award was unjustified is rejected. 11.27 We note that in his pleadings, the respondent claimed 37 months' pay as damages for wrongful and unfair dismissal. But in opposing ground one, did not merely seek to defend the -J26- • lower Court's award of damages but requested us to enhance the award to 42 months' salary. 11.28 Nevertheless, there was no cross appeal filed in accordance with Order 10 rule 11(1) of the Court of Appeal Rules to enable this Court to consider enhancing the award. Therefore, we have no power to consider increasing the award. 12.0 CONCLUSION 12.1 All being said, the appeal is dismissed for lack of merit. The lower court's judgment is upheld. Costs to the respondent to be taxed in default of agreement. c.. c:::::::: : - - - - - - _::, ......................................... M. M. KONDOLO, SC COURT OF APPEAL JUDGE C. K. MAKUNG COURT OF APPEAL JUDGE Y. CHEMBE COURT OF APPEAL JUDGE -J27-