Nzemba Rodgers v Zambeef Products Limited (COMP/IRC/SL/19/2016) [2017] ZMIC 4 (24 March 2017)

IN THE HIGH COURT FOR ZAMBIA INDUSTRIAL RELATIONS DIVISION HOLDEN AT SOLWEZI COMP/IRC/SL/19/2016 BETWEEN: ·, ,. NZEMBA RODGERS COMPLAINANT AND ZAMBEEF PRODUCTS LTD. BILLY MUSUKWA 1 ST RESPONDENT 2ND RESPONDENT BEFORE: Hon. Mr. Justice E. L. Musona For the Complainant In Person For the Respondents Ms N. B. Chanda of Messrs A. M. Wood and c.o. JUDGMENT Date : 24th March, 201 7 Cases referred to: 1. Edna Nyasulu v Attorney General (1993) ZR 2. Chilanga Cement and Kasote Singogo SCZ No. 31 of 2009 (unreported) . - ... . .. J2 This Complainant was filed by M/Nzemba Rodgers against Zambeef Products Ltd and Billy Musukwa. I shall refer to M /Nzemba Rodgers as the Complainant and to Za1nbeef Products Ltd and to Billy Musukwa as 1st and 2 nd Respondents respectively which is what the parties to this case actually were. The Complainant's claim is for the following relief: 1. an order and declaration that the purported termination of employment of the Complainant by the Respondents amounts to dismissal and such dismissal is unfair, wrongful and unlawful; ii. damages for unfair, wrongful and unlawful dismissal; iii. an order that the Respondents pay all the benefits due to the Complainant; iv. costs and interest on the sum to be found due; v. further and other relief the court may deem fit and just. The duty for this court is to ascertain whether or not the Complainant has proved his claim against the Respondents. The Complainant gave evidence in support of his claim. I shall refer to the Complainant as Complainant witness number one (CWl). CWl told this court that he started work with the Respondents on a two (2) year contract on 29th March, 2013. He entered into a second contract in December, 2015. l .. J3 The Complainant was then based in Solwezi. When CWl reported for work on 27th October, 2016 at Solwezi outle t 1, he was told not to work but await instructions from the Respondents' Human Resources Department in Kitwe. No one from the Respondents' Human Resources Department phoned, but instead Mr. Shadreck Matabishi who was Stock Controller phoned and instructed that CWl travels to Kitwe to see Billy Musukwa who was the Respondents' Human Resources Officer. CW 1 reported to Billy M usukwa on 28th October, 2016. CW 1 was then told that he w a s on tra nsfer to Kitwe and would be working from the dispatch sectio n. He was then told to report to the Dispatch Manager. CWl requested from the Dispatch Manager permission to return to Solwezi to secure accommodation for his family. The Dispatch Manager gave CWl two (2) days permission. He was to report back to Kitwe for work on pt November, 2016. He did not report for work on 1s t November, 2016 because 1s t November, 2016 that is the day he travelled to Kitwe. He, instead, reported for work on 2 nd November, 2016. When he went for work on 2 nd November, 2016, he reported himself to the Human Resources Officer. The Human Resources Officer, however, referred him to the Dispatch Manager who was the irrunediate supervisor to CW 1. J4 When CWl asked to be given a letter under which CWl was transferred from Solwezi to Kitwe, the Human Resources Officer still referred CWl to the Dispatch Manager. When CWl went to the Dispatch Manager, it was 09.00 hrs and the Dispatch Manager sent CWl away because reporting time at the dispatch section was 05.00 hrs. When CW 1 asked for accommodation and food he was referred to the Human Resources Officer. CWl and the Dispatch Manager then went to the Human Resources Manager but CWl was sent away from the office of the Human Resources Manager by the Human Resources Manager. According to CWl, one employee felt pity about the plight of CWl. That employee requested another employee called John to accommodate CWl for that night only. The time then was about 11.00 hrs. CWl waited outside for John up to knocking off time at 16.30 hrs. When John knocked off at 16.30 hrs, he told CWl that he wa:s not going home right away. So, John gave CWl his phone number so that the two (2) would communicate later on when John would be going home. When CWl phoned John around 18.00 hrs John's phone was not reachable. Attempts to reach John on that mobile phone proved futile. CWl then went to the station and found himself transport to go back to Solwezi. The following day CW 1 reported what transpired in Kitwe to the Assistant Manager at Solwezi. CWl then reported the matter to his union. On 17th November, 2016, CWl received his dismissal letter which was dated 8 th November, 2016. .. JS The Respondents called three (3) witnesses. I shall refer to these witnesses as Respondents' witnesses number 1 (RWl) to Respondents' witness number three (RW3) respectively. RWl was M/Billy Musukwa the Human Resources Officer for the Respondents in Ki twe. According to RWl, he told this court that on 28th October, 2016 when CWl reported to RW1, RWl told CWl that he (CW1) was on transfer to Kitwe and that he would be under Dispatch Department. CW1 went to Dispatch Department but a while later, CWl went back to RW 1 in the company of the Dispatch Manager and complained that he did not want to work in Kitwe but any other place in Solwezi. CWl left but a while later went back to RWl with the Dispatch Manager. RWl then showed CW1 the notification of transfer which RWl was using to raise money for the payment of the relocation allowance to CW1 with the accounts department. On 8 th November, 2016 the Dispatch Manager reported to RWl that CWl was not reporting for work. On that date the cheque for the payment to CWl for his relocation allowance from Solwezi to Kitwe was ready. The letter of sunrmary dismissal in respect of CWl was prepared. On 9 th November, 2016 that cheque was returned to accounts department for cancellation. RW2 was M/Felix Kalunga a Dispatch Manager for the Respondents at Kitwe . J6 RW2 told this court that CWl went to him on 28 th November, 2016. When CWl complained to RW2 that he (CWl) had money issues to resolve with the Human Resources Officer he went to the Human Resources Officer with CW 1. The Human Resources Officer told RW2 that he (Human Resources Officer) was working on the payment for OWL That was 28th October, 2016. According to RW2, CWl refused to work on that day and left. CWl reappeared to RW2 on 1st November, 2016 when they were about to knock off. CWl told RW2 that he (CWl) had financial constraints. CWl then left. RW3 was M /Guy Changole who is Head for Human Resources for the Respondents. RW3 told this court that according to Clause 7.6 of the Respondents' Disciplinary Code, absence from work for 5 or more days is categorized as desertion and carries a penalty of summary dismissal. He further stated that CW 1 was dismissed on account of desertion and that he could not be charged because he had deserted. He told this court that when an employee is transferred, relocation allowance is paid by the receiving station because it is a cost to the receiving station. CWl was receiving housing allowance to enable him source his own accommodation. Transport to relocate an employee who is on transfer is provided by the Respondents when the employee has secured accommodation at his new station. J7 Having considered the evidence in this case, I shall now determine the relief sought. i. An order and declaration that the purported termination of employment of the Complainant by the Respondents amounts to dismissal and such dismissal is unfair, wrongful and unlawful I s hall determine this claim under the following subje ct heads as they appear in the claim; (a) Unfair (b) Wrongful (c) Unlawful (a) Unfair dismissal Generally, unfair dismissal arises where the employee has not been given a hearing. The Complainant in this case was not given a hearing prior to his summary dismissal, and there is no dispute. The only defence raised by the Respondents was that they did not know where to find the Complainant because the Complainant was no longer reporting for work. It is not in dispute that the Complainant did not report for work for some days . It is on that account that I shall give the Respondents a benefit of doubt . On those basis, therefore, the claim for unfair dismissal fails. (b) Wrongful dismissal J8 Wrongful dismissal arises where the employer has breached a term of contract or code of conduct when dismissing the employee. I have also looked at the case of Edna Nyasulu v Attorney General (1) and have been well guided. In that case the court held that; "where a Plaintiff alleges that he has been wrongfully unfairly dismissed ... it is generally for him to prove those allegations" . I have looked a t the contract of employment in this case. This was produced by the Respondents in their bundle of documents . Clause 13 of the contract provides for payment of subsistence allowance to an employee who is required to spend a night away from home to attend to the business of the employer at the r a te of K200 per night to cover all e xpenses. I have noted that when CWl went to Kitwe, he went to attend to the business of the employer. I have also noted that he was r e quired to spend at least a night away from his home. The Respondents, howeve r, did not pay to OWl requisite subsistence allowance. The Respondents in their evidence did not allude to subsistenc e allowance . Failure by the R e spondents to pay to OWl his s ubsistence allowance was a brea ch of Cla use 13 of the contra ct. Althoug h J9 CWl had gone to Kitwe the Respondents should have given CWl a few days to enable CWl look for accommodation and it is those few days which should have attracted the payment of subsistence allowance. From the facts of this case, it is clear that the Respondents wanted CWl to commence work promptly upon arrival in Kitwe without giving him time to look for accormnodation. That was wrong. Failure by the Respondents to pay CWl subsistence allowance before securing accommodation in Kitwe was wrong. This is what led to the last minute panic attempting to lodge CWl at the home of a fellow employee. It has been established that the Respondents did not give CWl time to look for accommodation. It has also been established that the Respondents did not pay any subsistence allowance to CWl to cover for expenses while looking for accommodation in Kitwe. What has been established is that the Respondents prepared cheque payment for relocation allowance in favour of CWl although it was cancelled when the Respondents noticed that CWl was not reporting for work. I have looked at that cancelled cheque. It is dated 3 r d November, 2016. The Respondents did not explain how they expected CWl to live and to survive between 28th October, 2016 when he arrived in Kitwe and 3 rd November, 2016 when that cheque payment for relocation allowance was made. JlO It is not in dispute that CWl was not given a letter of transfer when they told him to go to Kitwe. CWl was only told by word of mouth to go to Kitwe and he obliged. Even as he travelled to Kitwe he did not know that he had been transferred to Kitwe. This was wrong. When he was instructed to go to Kitwe he was not given transport money. CWl used his own money. The Respondents did not tell this court why they did not provide transport money. Failure to provide transport to CW 1 for the trip from Solwezi to Kitwe was wrong because that was a business trip at the instance of the Respondents . The above facts show that it was hard for CWl to live in Kitwe. The circumstances under which CWl deserted his employment amounted to constructive dismissal. The conduct of the Respondents and the treatment they accorded CWl were unacceptable, and when CWl deserted his employment, that was the right thing for him to do under those circumstances because the Respondents had already dismissed him constructively. I have looked at the case of Chilanga Cement and Kasote Singogo (2) and have been well guided. In that case, the Supreme stated that; "... an employee can claim to have been constructively dismissed if he resigned or was forced to leave employment as a result of his employers' unlawful conduct .. . " :.. Constructive dismissal, therefore, arises when the employer's conduct is so unbearable that the employee has no choice but to resign or simply walk away. This is what happened in the case in casu. On the above basis, the claim for wrongful dismissal Jll succeeds. (c) Unlawful dismissal Unlawful dismissal arises when the employer has breached a statutory provision when terminating the employee's employment. In order to succeed on this claim, the burden of proof rests on the claimant to show which statute has one or more of its provisions breached by the manner the employer dismissed the employee. CWl did not show this court which statutory provisions where breached in the instant case. This claim, therefore, fails. n. Damages for unfair, wrongful and unlawful dismissal I have already ruled above that the claims for unfair and unlawful dismissal have failed. I have also already given the reasons for that. I have also indicated above that the claim for wrongful dismissal has succeeded. Against, I gave reasons for that. I have looked at the circumstances of this case and am satisfied that payment by the Respondents to CW 1 of two (2) J12 months basic salary for wrongful dismissal shall suffice and so, I order. I I I I I I i I iii. An order that the Respondents pay all the benefits due to the Complainant I have seen no reason why CWl should not be paid the benefits which are due to him. I have also seen no reason why CWl should forfeit one month notice pay because the employee's exit from employment was a constructive dismissal. I order that CWl be paid all his benefits which are due to him under the contract of employment less only statutory contributions if any. CWl should not suffer deduction in lieu of notice. I also order that CWl be paid for the number of days he worked for before his exit from employment, if not yet paid. I order interest on the within awards. In default of agreement same to be assessed. I order costs in favour of CWl. In default of agreement same to be taxed. Delivered and signed at Solwezi in open court this the 24th day of March, 2017. Hon. E. L. Musona JUDGE -- - - - - - -