Peter Mseteka v Solwezi Trades Training Institute Management Board (COMP NO. IRC/SL/01/2017) [2012] ZMIC 1 (30 November 2012)

IN THE HIGH COURT FOR ZAMBIA COMP NO. IRC/SL/01/2017 AT THE SOL WEZI DISTRICT REGISTRY HOLDEN AT SOL WEZI (INDUSTRIAL/ LABOUR DIVISION) PETER MSETEKA AND COMPLAINANT SOL WEZI TRADES TRAINING INSTITUTE RESPONDENTS MANAGEMENT BOARD ' • ~ •. • • • , ' • .- • • • \ • I '· , \ • . . . . . . ~ ' · ·: ·' : . . . . , . . ·• BEFORE: Hon Judge E. L. Musona For the Complainant: In person For the Respondents: Mr M. Mwachilenga of Messrs Mumba Malila and Partners JUDGMENT Date: 30111 day of November, 2017 CASES REFERRED TO I. ZESCO V David Lubasi Muyambango SCZ Judgment No. 7 of 2006 2. Attorney General v. Richard Jackson Phiri (1988-1989) ZR 121 J2 3. Zambia National Provident Fund v Y. N Chirwa (1986) ZR 70 (SC) 4. Wilson Masauso Zulu v Avondale Housing Project Limited (1982) ZR 172 (SC) 5. Khalid Mohamed v Attorney General (1982) Z. R. 49 6. Galaunia Farms Limited v National Milling Corporation Limited (2004) ZR 1 SC OTHER WORKS REFERRED TO 1. Paragraph 323 of Halsbury's Lnws of England, Volume 16, 41h Edition 2. Paragraph 407 of ffalsbury's Laws of England, Volume 40, 4111Edition at page 375 This Complaint was tiled by Peter Mseteka. The Complaint was filed against Solwezi Trades Training Institute Management Board. I shall therefore refer to Peter Mseteka as the Complainant and to Solwezi Trades Training Institute Management Board as the Respondents which is what the parties to this action actually were. The Complainant's claim is for the following reliefs:- 1. An order or declaration that the purported termination of employment of the Complainant by the Respondent amounts to dismissal and such dismissal is unfa ir, wrongful and unlawful. 2. Damages for unfair, wrongful and unlawful dismissal. 3. An order that the Respondent pays all the benefits due to the Complain ant. 4. Costs and Interest on the sum to be found due and payable. 5. Further and other relief the Court may deem fit. J3 The duty for this court is to ascertain whether or not the Complainant has proved his claims. The Complainant in this matter testified and called one other person as a witness whom I shall refer to as CW I. The Complainant's evidence was that he was employed by the Respondents as Maintenance Foreman on the 15111 of January, 2015. On the 27th of October, 2016, he asked for permission from the Respondents' Human Resource and Administration Officer by the name of Mr. Pumulo Mubita to go and attend to his sick child who was admitted in hospital. Mr. Mubita told the Complainant to do some work first, then he would be released later. Around 11 :30 hours, he was released to go and attend to the patient in hospital and he was also given permission to go home immediately, once he left the hospital. • The Complai nant told the court that at around 15:00 hours on that very day, he realized that he had not closed the water valves and switched off the water valve at the Respondent institution. Out of confusion, he rushed back to the institution to close the water valves and switch off the pump as he was the only one who had access to the pump house. On his way to the hostels to close the water va lves, he met the Respondents Principal Mr. Edmond Kambobe who was with a general worker Mr Stephen Mukwemba at the graduation square. Where the Principal was standing, there was a horsepipe and a 210 litres drum full of water. The Principal was watering using a bucket. The Complainant told the court that he greeted the Principal and told him that he was going to close the water valves. The Principal asked him why he was going to close the water valves and his response was that he wanted to ration the water at the institution. The Principal seemed to upset by that response and he called the Complainant. He told the Principal that he was rushing to close the water valves to avoid water wastage. The Complainant's evidence was that, to his surprise, the Principal abandoned what he vvas doing and followed him to the hostels. The Principal went to the hostels with two other employees of the Respondents in his vehicle. These were Mr. Humphrey Kakengela and Mr. Peter Saji . The Principal called him again to go to his car. He got surprised because he never used to report to him and he did not know why he was being called. He further told the comi that after a short period of J4 time, the Principal drove off at hi gh speed leaving the institution. He switched off the pump and left the institution. On the 2nd of November, 20 16, the Principal Mr. Edmond Kambobe constituted a staff disciplinary committee which was chaired by Mr Zacharia Chitedze. Present at the hearing were Mrs. Ethel Shangobeka, Mrs. Muzumara Banda and Mr. Humphrey Kakengela. The Complainant told the court that he was given three charges namely insubordination, knocking off early and being drunk on duty. He referred the court to a document marked " PM2" in the Complainant's Affidavit in Support of Complaint which was the charge letter given to him by the Respondents . • On the I 1th of November, 2016, he exculpated himself. On the 22nd of November, 2016, he received a letter of summary dismissal from the Respondents' Principal Mr. Kambobe dated 2 1st November, 20 16. He was given live days within which to appeal and he continued going for work because he was waiting for his appeal. On the 28 th of Novemeber, 2016, he received a phone call from Mrs. Linda Mambwe who was a board member of the Respondents, she asked him to stop reporting for work pending his appeal hearing. The Complainant told the court that on the 2nd of December, 2016, the Respondents called him for his appea l hearing which consisted of three board members namely Mrs. Linda Mambwe, Mama Sebcle and Mrs Ngoma. The Principal Mr Kambobe was also present. After the hearing, he was informed that delivery of the verdict had been adjourned to the fo llowing week and surprisingly the Principal who was the aggrieved party sat with the board mem bers to di scuss this decision. He did not get any response and a week elapsed. On 27th December, 2016, he received a phone call from the acting Human Resource Officer Mr. Rodwell Mulundano informing him that there was a letter for him from the Respondents. He asked Mr. Mulundano to give the letter to his neighbor Mr Silungwe who delivered the letter to him. The letter was dated 16th December, 2016 and it was stating that his appeal was dismissed. • In cross-examination, the Complainant told the court that he did not know why the Principal was calling him on the 27th of October, 2016 and he did not go to the Principal immediately because • • - JS he was rushing to close the valves. At the time the Principal was calling him, Stephen Mukwemba was close enough to hear what the Principal was sayi ng. The Principal called him twice but he did not go to him. He told the court that he had bad relations with some people at the Respondent institution like Stephen Mukwemba, Humphrey Kakengela and Peter Saji. He told the com1 that the Principal did not inform him that he wanted to take him for an alcohol breath test and he was not drunk, fu11hermore, he would not have had any problem with going for a breath test. In cross exarnination, when he was referred to a statement about the happenings of 27th October, 2016 written by Getrude Sakashenda, he conceded that he did not mention her as one of the people who hated him at the institution. He denied telling the Principal that he was wasting water. CW I was Mr. Pumulo Mubita. His evidence was that on the 27th of October, 2016 at around 07:50 hours, the Complainant asked him for permission to go to the hospital and attend to his sick child. He gave him permission and told him to go to the registry to fill in leave forms but the Complainant told him that he would do some work first then proceed later. His evidence was that he never saw the Complainant again on that day. He told the court that the Complainant had an assistant by the name of Elias Chitande who wou ld do the Complainant's work in his absence. When he was referred to the Complainant's exculpatory letter in cross-examination, he conceded that he had given a conflicting statement to what the Complainant had written in that document which shows that he asked for permission at 11 :30 hours and not 07:50 hours. The Respondents called one witness by the name of Rodwell Mulundano who I shall refer to as R WI . He told the court that he would be relying on the Answer and Affidavit in Support filed into court on 30th June, 20 l 7. He told the court that he was present on the 27th of October, 2016 at the time of the incident. The Complainant used bad words against the Principal and it was insurbordination. The Respondents' evidence on record is that the Complainant was employed by the Respondents under a three year contract as Maintenance Foreman. The Complainant's employment was also governed by the Respondents' Disciplinary Code which was marked as "MR2a" in the Respondents Affidavit in Support of Answer. The Complainant was charged for J6 leaving work before time without permission, insubordination and being drunk on duty. This was in accordance with the disciplinary code and he exculpated himself. The Respondents further evidence is that a disciplinary hearing was convened and evidence from various witnesses was considered. The statements of these witnesses have been marked as " MRS" in the Respondents' Affidavit. The disciplinary committee was convinced by the evidence presented to it that the Complainant had exhibited behavior that could only be attributed to drunkenness and that he had refused to obey a lawful instruction of accompanyi ng the principal for a breath test. The recommendations and findings of the committee have been exhibited by the Respondents as "MR6". Respondents further evidence is that acting on the recommendations of the committee they dismissed the Complainant from employment and gave him the right to appeal, which he did. The Respondents' Principal did not sit as a board member at the appeal hearing but he was merely called to give his evidence. The Respondents' decision to dismiss the Complainant from employment was upheld at appeal stage as there was overwhelming evidence against him. Having looked at the evidence in this case, I must now consider the reliefs sought. 1. An order or declaration that the purported termination of employment of the Complainant by the Respondent amounts to dismissal and such dismissal is unfair, wrongful and unlawful. 2. Damages for unfair, wrongful and unlawful dismissal. • • .._. I have decided to consider the first and second reliefs sought by the Complainant together. Unfair dismissal relates to disciplinary procedure in dismissing the employee. If the disciplinary procedure is not followed, the dismissal amounts to unfair dismissal. In order for the dismissal to be fair, the employer must adhere to disciplinary procedures and the reason for the dismissal must be valid. J7 According to Paragraph 323 of Halsbury's Laws of England, Volume 16, 4 th 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 ... " I have a lso looked at Halsbury's Laws of England 4th Edition, Volume 40 November 2000 at page 375 paragraph 407 where the learned authors state that, "when drawing up disciplinary procedures, employers should have regard to the requirements of natural justice. This means that workers should be informed in advance of any disciplinary hearing of the allegations that are being nrndc against them together with the supporting evidence and be given an opportunity of challenging the nllegations before decisions are reached. Workers should be given the right of appeal against any decisions taken." • • • • JS In the matter in casu, the Respondents charged the Complainant. I have seen the charge sheet marked as "MR3" in the Respondents' Affidavit in Suppo11 of Answer which reads as follows: - "09/11/2016 Mr, Mseteka Peter Dear Sir, RE: MISCONDUCT YOURSELF On Thursday, 27 th October, 2016, your behavior was not befitting that of a public worker. According to a Memorandum from the Principal elated 151 November, 2016, the Staff Discilinary Committee has been empowered with responsibility to charge you since ' . .... the office of HR. AO must not be cited for any matters of disciplinary nature until further notice . ... ' Using th e existing Disciplina ry Code and Grievance Procedure, the Staff Disciplinary Committee in its recent meetings, the latest being on 081h November, 2016 resolved to charge you with the following offences: (1) Offence l(a) ... . Jeaving the workplace during period of work including leaving work before time without permission . (2) Offence 9: Insubordination by:- (a) Refusing to go to where the Principal was when called by the Principal at the Graduation Forum, and (b) Refusing to go to where the Priucipnl wns when called by the Principal near Automotive Workshop, and (c) Refusing to go to the police with the Principal for a breath test. (3) Offence lS(a) being drunk on duty ....... . The Staff Disciplinary Committee ·would like you, therefore, to show cause why disciplinary action should not be taken against you because of these charges against you. Your J9 exculpatory letter should reach the Committee by Monday, 14111 November, 2016, at 14:00 hours. " Further evidence on record is that after being charged, the Complainant excu lpated himself on the h 1 I • of November, 20 I 6 and the letter of exculpation has been exh ibited as "PM3" in the • Complainant's Affidavit in Support of Notice of Complaint. Only after being heard was the Complainant dismissed from employment on 22"d November, 2016. The reasons for the dismissal were that the Complainant was drunk on duty on the 271h of October, 2016 and a number of witnesses testified to the disciplinary committee, the Complainant refused to go for a breath test and he knocked off from work before time without express permission. The Complainant appealed to the Respondents' board of directors against his dismissal. The appeal is marked as "MR8" in the Respondents' Affidavit in Support of Answer. I am guided by the case of ZESCO V David Lubasi Muyambango SCZ Judgment No. 7 of 2006 where it was held as follows: • "it is not the function of the Court to interpose itself as an appellate tribunal within the domestic disciplinary procedures to review what others huve done. The duty of the Court is to examine if the,·e was the necessary clisciplinnry power nncl if it was exercised properly." In the case of Attorney General v. Richard Jackson Phiri (1988-1989) ZR 121 it was stated 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 .... We agree that once the correct procedures have been followed, the only question which can arise for the ·- . - . . - .... - . . JlO 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 to sustai11 charges 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." Based on the foregoing plethora of authorities and having considered the evidence before me, I am satisfied that the correct proced ure was followed by the Respondents when dismissing the Complainant and th e Respondents had the necessary disciplinary power which was properly exercised. The Complainant was charged and heard at both disciplinary and appeal level. At no time was the Complainant not given a chance to be heard and defend himself. I am also convinced that the dismissa l was based on facts given to the Respondents' disciplinary committee by witnesses who were present on the 271h of October 20 I 6, hence the reason for the dismissal was va lid. The statement from one Getrude Sakashenda for instance which was exhibited as "MR5d" in the Respondents' Affidavit in Support of Answer is couched in the following terms:- " .... The Principal came and joined us as he was telling us whnt to do and he was also demonstrating by watering the flowers. After n few minutes Mr. Mseteka was pnssing heading towards the hostels, then he saw me, Mr. Mukwemba and Mr. Kambobe the Principal, then he started saying he started asking the Principal to stop watering the plants saying he was wasting water and he was going to turn off the pump. The Principal tried to ask Mr. Mseteka to come nearer where he was because he was shouting from a distance then Mr. Mseteka said "kabiye uko" with his hand gesture" • • • Jll Based on such evidence from witnesses, the Respondents dismissed the Complainant for insubordination, being drunk on duty and knocking off before time. The reason for the dismissal was thus valid. The claim for unfair dismissal by the Complainant cannot therefore stand because there was a valid reason for the dismissal and the disciplinary procedures were followed . 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. I have looked at the allegations in this case. The Complainant was dismissed on charges of knocking off before time wi thout permission, insubordination by refusing to go to the Principal when called and being drunk on duty. The Complainant' s own witness CW2 told the court that when the Complainant asked him for permission to leave work in order to attend to his child in hospital, he told him to go to the registry to fill in leave forms but the Complainant did not do so. It is therefore my considered view that the allegation of knocking off before time without permission was proved against the Complainant. CW ! who was the Complainant himself told the court that the Respondents' Principal called him at the graduation square but he did not go to where the Principal was because he was rushing to the hostels to switch off the water pump. The Principal called the Complainant again when he was at the hostels but he refused to go where the Principal was. This is a clear sign of insubordination and failure to obey lawful instructions. I have looked at the statements from witnesses who were present at the scene on 27th October, 2016 which have been marked as "MR5a" to "MR5d'' in the Respondents' Affidavit in Support of Answer. The co mmon fact from those statements is that the Complainant told the Respondents' Principal that he was wasting water and he refused to go to where the Principal was when he was called. I am satisfied that the charge of insubordination, was therefore proved against the Complainant. .. - -· --- --- ·-- . . - --- - - ---- ·- · - - - -- ·-·----- .. - . - . J12 On the charge of being drunk on duty, the Complainant in hi s exculpatory letter marked as " PM3" in the Complainants' Affidavit in Support of Complaint wrote the following: - "I was in an unstable state of mind due to illness of my child as I kept thinking about my sick child as there was need to rush him back to the clinic and later on that evening after the health condition of my sick child stabilized, I realized that the Principal had wanted to meet me. I tried to call him but could not go through because I had no airtime in my mobile phone . I did not deliberately refuse to meet the Principal at will as alleged in your letter except that I was in an unstable state of mind due to the illness of my child" • Based on the foregoing , the Complainant admitted being in an unstable state of mind, hence the Respondents cannot be faulted for concludin g that the Complainant was drunk on duty as he exhib ited behavior th at could on ly be attributed to drunkenness. The allegation s against the Complainant were thus proved against him by the Respondents. • In the case of ZESCO Limited v David Lubasi Muyarnbango SCZ Judgment No. 7 of 2006 it was held as follows: "Where it is not in dispute that the employee hns co1nmitted an offence for which the appropriate punishment is dismissal and he is dismissed, no injustice arises from the failure to comply with the laid down procedure in the contract and the employee has no claim on the ground for wrongful dismissal or a declaration that the dismissal was a nullity." I am further guided by the case of Zambia National Provident Fund v Y. N Chirwa (1986) ZR 70 (SC) , in which the Supreme Court in that case was of the view that - - - - - - -------- --·- --.. -- Jl3 "where the employee sues for wrongful dismissal on account of the employer not having adhered to the disciplinary procedures in dismissing him, it is enough for the employer to prove that even though he did not adhere to the disciplinary procedures, he was nonetheless justified in dismissing him as he was guilty of the wrong he was accused of.,, The allegations against the Complainant were proved by the Respondents and therefore a claim for wrongful dismissal cannot stand . • -:. A dismissal of an employee is unlawful if it violates a statutory provision. The Complainant did not show the court which statutory provision was breached by the Respondents, hence the claim for unlawful dismissal fails. The dismissal from employment of the Complainant by the Respondents was clearly justified. I am well guided by the cases of Wilson Masauso Zulu v Avondale Housing Project Limited (1982) ZR 172 (SC), Khalid Mohamed v Attorney Genenil (1982) Z. R. 49 and Galaunia Farms Limited v National Milling Corporation Limited (2004) ZR l SC where it was held - that:- "A plaintiff must prove his case and if he foils to do so, the mere failure of the opponents defence docs not entitle him to Judgment." The Complainant has lamentably failed to prove that his dismissal was unfair, wrongful and unlawful. The claim for damages for un fair, wrongful and unlav,,ful is destitute of merit and is hereby dismissed accordingly. I - - -- ··-- - - -· ---- ------- __ ,., . .,, ... - -· "' ---· - ---- ·-· - . - - .. -- -·- - -- 3. An order that the ResQondent pays all the benefits due to the Complainant. J14 The Complainant did not lead any evidence to show what benefits if any are due to him, I cannot therefore grant this relief as the Complainant has not proved it. This Complaint is hereby dismissed in its entirety for lack of merit. I shall make no order as to costs. Leave to appeal within 30 days from today is granted • -: I