Phanuel Makombe v Lactalis Zambia Limited (2022/HPIR/186) [2024] ZMHC 247 (31 October 2024)

IN THE HIGH COURT FOR ZAMBIA INDUSTRIAL RELATIONS DIVISION HOLDEN AT LUSAKA (CIVIL JURISDICTION) BETWEEN: PHANUEL MAKOMBE AND LACTALIS ZAMBIA LIMITED 2022/HPIR/ 186 J I r I COMPLAINANT ~ClA T'rn ~ " ~ - \S'\ RESPONDENT CORAM: Hon. E. MWANSA Esq JUDGE APPEARANCES: For the Complainant : Ms. T. Kasanda - Messrs Kasiya Legal Practitioners For the Respondent : Mr. P. Chomba - Messrs Mu lenga Mundashi Legal Practitioners JUDGMENT Authorities Referred to Statutes 1. Industrial and Labour Relations Act Chapter 269 of the Laws of Zambia. 2 . The Employment Code Act No. 3 of 2019. Cases 1. Prudence Rashai Chaikatisha -V- Stanbic Bank Zambia Limited Appeal No. 95/2015. Jl 2 . Care International -V- Misheck Tembo SJZ No. 56 of 2018. 3. Raphael Katenekwa -V- Finance Bank Zambia Limited SCZ Appeal No. 140/2011. 4. Superbets Sports Betting -V- Batuke Kalimukwa SJZ No. 27/2019. 5. Beatrice Chileshe Sinyangwe (Suing as Administratrix of the Estate of the Late Kaleb H. Sinyangwe) and Kafue District -V James Chipulu (1997) SJ 13. 1.0 COMPLAINANT'S CASE 1.1. Evidence contained in the Affidavit in Support of the Notice of Complaint as well as that tendered to Court viva voce is to the effect that the Complainant was employed as a van sales driver by the Respondent. That was on 10th December, 2013. At 'PMl' is a copy of the Contract of Employment. 1.2. It is the testimony of the Complainant that he was employed by the Respondent in 2013. 1.3. That in 2019 , on 28th May, he had a shortage of one box of cheese. This was allegedly noticed after offloading the goods in Livingstone. 1. 4. On getting back from Livingstone, he was charged for Gross Negligence for the loss of a box of cheese. He was later and dismissed. J2 1.5. According to him, he could only be dismissed if he failed to pay for the cheese. And that this was the only shortage in the six ()6) years he had worked for the Respondent. 1. 6. It was his further testimony that ordinarily, he could have just been asked to pay for the shortage but he was dismissed after the hearing. 1. 7. His Appeal, to two higher bodies was unsuccessful. 1.8. Under cross examination, a few other incidents were brought to the attention of the Complainant. These were: 1. 8.1. A scanner that went missing from his vehicle in 2014 and a letter from Stalilo Police Post of 2 nd May, 2014. 1.8.2. Some unaccounted for products were found in his vehicle. 1.8.3. Again on 22nd May, 2018, excess products were found in his vehicle. 1.8.4. Another incident was alerted to him for 14th August, 2018, of excess products in his vehicle. J3 1.8.5. Then this incident was for 24th January, 2019. He exculpated himself. He was charged and heard in a disciplinary committee. He admitted and was dismissed. 1.9. The Complainant now comes to Court seeking the fallowing relief: 1.9.1. Damages for unfair and/or wrongful dismissal amounting to 36 month's salary; 1. 9.2. Compensation for loss of employment; 1.9.3. Damages for mental torture, distress, pain, suffering, anguish inconvenience and anxiety inflicted on the Complainant; 1.9.4. Interest for any amount found to be due; 1.9.5. Any other relief the Court may deem fit; 1.9.6. Costs. 2.0 RESPONDENT'S CASE 2.1. The Human Resource Business Partner. Mr. Teddy Mumba was the only witness called by the Respondent. He is referred to here as PW 1. J4 2.2. His testimony in Court, was very brief. But the Affidavit in Support of Answer is lengthy. And much of what is under this head is contained in that Affidavit. 2.3. The Affidavit deposed to by one Rakesh Sharme is materially that the Complainant, on 27th May, 2019, loaded stock for Livingstone. 2.4. Unfortunately, he arrived at Livingstone with one box of cheese less. 2.5. He exculpated himself in writing. But he was charged for Gross Negligence of duty, and heard on 18th June, 2019, and subsequently dismissed. 2.6. In arriving at the dismissal, the Respondent recounted other occasions when the Complainant was said to be negligent. These incidents included the following :- 2.6.1. On 24th January, 2019, the Complainant was alleged to have swapped 110 cases of cabana peach 500 mls with 110 cases of cabana peach x 250 mils; 2.6.2. On 13th August, 2018, the Complainant's truck to Livingstone was found with 8 cases of strawberry yoghurt and 8 cases of JS banana yoghurt concealed in cabana pallets; and 2.6.3. On 21 st May, 2018, the truck driven by the Complainant was found with 12Ox500gms yoghurt pineapple which was not on the load sheet. 2. 7. Appeals at two higher levels were not successful for the Complainant. 2.8. It was the Respondent's averment that failure by the Complainant to counter check what was loaded on this last occasion, and his past record of negligently performing his duties amounted to Gross Negligence of duty and the Respondent was justified in dismissing him. 3.0 FACTS ESTABLISHED 3.1 . The Complainant was indeed employed as stated. 3.2 . It is a fact that he was on s everal occasions, not less than three occasions, either found with stock not on the delivery sheet as loaded; or h e had some form of shortfall as in the "last stroke that broke the camel's back". 3. 3. I find as a fact on each of these occasions his actions J6 showed admissions. In other instances police reports show for the occurrence of the event. 3.4. It is a fact, he was charged and he exculpated himself. 3. 5. It is an established fact that he was h eard in a disciplinary committee constituted for this purpose. Whereupon, he was dismissed. 3.6. It is a fact that Appeals lodged to two higher bodies were not helpful to the Complainant as the dismissal was upheld at each of these stages. 4.0 ISSUES FOR DETERMINATION 4.1. Whether in the circumstances as above outlined, there can be said to have been unfair or wrongful dismissal. 4 .2. Whether there was mental torture or distress established to give rise to damages. 5.0 THE COURT'S CONSIDERATION AND DETERMINATION 5.1. Unfair and/ or wrongful dismissal 5.1.1. Unfair dismissal has been defined as dismissal contrary to statute or dismissal based on unsubstantiated grounds. So the reasons behind the dismissal are a good consideration J7 1n arnv1ng at wheth er th e dismis sal was unfair 1. 5.1.2. In Superbets Sports Betting -V- Batuke Kalimukwa, selected J udgm en t No. 27 of 2 01 9 th e Suprem e Court guided on this issue wh en it s t a ted that: ....... n Order to determine " I whether a ismissal was fair or unfair, an employer must show the principal reason for the dismissal and such reason must re late to the conduct; capability or qualifications of the employee for performing work of the kind which he was employed by the employer to do; or to operational requirements of the employer's business. The Court is in unfair dismissal, obliged to consider the merits or substance of the dismissal to determine, Prudence Rashai Chaikatisha -V- Stanbic Bank Zambia Limited Appeal No. 95/2 015 1 Care International -V- M isheck Tembo J8 whether the reason given for the d ismissal is supported by the relevant/acts" 5.1.3. I have not been alerted to any statutory prov1s1on that has been breached in this dismissal. 5 .1.4. The Respondent has provided before Court, instances when the Complainant was considered negligent in his duties. I have referred to some of these in 3 .2 earlier. And I would not fault the Respondent when it put together all these previous offences and the last one to institute disciplinary proceedings which culminated 1n the impugned summary dismissal. 5 . 1.5. In stating as such I am inspired by the Supreme Court decision, on which I now stand, in the case of Raphael Katenekwa -V Finance Bank Zambia Limited SCZ Appeal No. 140 of 2011 2 . In tha t case it was stated: " ....... the accumulation of wrongdoing by an employee Katenekwa -V- Finance Bank a/ Zambia Limited SCZ Appeal No. 140/2011 J 9 may merit dismissal in appropriate cases even when dismissal is not specifically provided for in each disciplinary charge ..... . Therefore, even though an employer can condone misconduct and keep the employee in the enterprise, habitual misconduct would justify dismissal". 5.1.6. I have ref erred to this provision because the Complainant seems to state that the collective agreement allowed him to be in employment and for the Employer, Respondent, to deduct from his salary for the lost box of cheese. I needed to put that to rest. His conduct on previous occasions that have been highlighted demonstrate the need to settle the conduct unbecoming of the Complainant. 5.1. 7. But then again, the offence of Gross Negligence, with which the Complainant was charged, calls for dismissal. JlO 5.1.8. Well still further, the Complainant does recognize that he was supposed to be present at the loading bay, each time his truck was being loaded. And his reasons for having wrong loads or overloads was that he was not there when the truck was loaded. Is this not negligence? And if this happens repeatedly, is not a breach of contract on his part? And if he is charged for this, would that be unfair? 5.1.9. I am settled that there were good reasons to charge and dismiss the Complainant and he is not justified to Complain that the dismissal was unfair. The relief under this head fails as there was no unfair dismissal. 5.1.2. As to wrongful dismissal, this is a dismissal contrary to the contract of employment. Under this type of dismissal, the form rather than the merits of the dismissal must be scrutinized(3H2l- 5.1.3. So under wrongful dismissal, it is the contractual prov1s10ns at to the form of dismissal that must be considered. It is procedure for dismissing an employee that needs to be considered. 2 Care International -V- Misheck Tembo SJZ No. 5600/ 2018. Superbet Sport Betting-V- Batuke Kalimukwa SJ No. 27/2019. J11 5 . 1.4. There is evidence before me that is not in dispute that the Complainant was charged with Gross Negligence, an offence punishable by summary dismissal. He exculpated himself and was passed through a h earing. He did not even deny the allegation, instead, he offered to mitigate the punishment. Unfortunately he was dismissed. 5.1.5. Even when he appealed at two higher levels, he did not deny the allegations he only contested the dismissal as having been too harsh. 5.1.6. I am satisfied, having considered the procedure leading to the dismissal herein, that there was clearly no wrongful dismissal. 5 . 1. 7 . Even assuming that the procedure was breached in effecting the summary dismissal, the case of National Breweries Limited -V- Phillip Mwenya SCZ Judgment No. 28 of 2002 provides guidance to the effect that: "Where an employee has committed an offence for which he can be dismissed, no injustice arises for failure to comply with the procedure stipulated in the contract and such an employee has no J l 2 claim on that ground for wrongful dismissal or a declaration that the dismissal is a nullity". 5.1.8. This position was true sixteen years earlier in Zambia National Provident Fund -V- Yekweniya Mbiniwa Chirwa (1986) ZR 70, the Supreme Court of Zambia gave guidance that: "Where an employee has committed a dismissible offence and he has been dismissed, the fact that there was failure to comply with a procedure prescribed for dismissing him does not make the dismissal ipso facto invalid. The critical issue here, as we see it, is not whether or not there was a set procedure for dismissal which may or may not have been followed. It is whether there was a dismissible offence committed by the employee". 5.1.9. I have already stated that infact there was a dismissible offence in form of Gross Negligence, and the Complaint went through the due process of disciplining an ernng employee. There was thus no wrongful dismissal. Jl3 5.2. Anguish And Mental Torture 5.2. 1. It is now a settled principle of law that damages are recoverable for mental torture and or distress suffered for loss of employment. 5.2.2. Even with this principle in my mind, damages can only be awarded if the dismissal is shown to have been inappropriate, that is to say, either unfair or wrongful. In our present case, none of these have been successful. 5.2.3. There is a further requirement that a party claiming such damages must show evidence for such mental distress or anguish suffered. Failure of such proof reacts against the Complainant(4l. 5.2.4. It is thus proper and fair to state as I now do that if at all such was suffered by the Complainant, he was an author of his own predicament. 5.2.5. In circumstances where the Complainant has failed to prove unfair and or wrongful dismissal or indeed mental torture, distress, pain suffering, anguish Beatrice Chileshe Sinyangwe (Suing as Administrartix of the Estate of the Late Kaleb H. Sinyangwe /) and Kafue District -V- James Chipu/u (1997} S. J. 13. J14 inconvenience and anxiety inflicted on him; no damages are recoverable. So in casu. 6.0 CONCLUSION 6.1. The Complainant has failed to establish or prove any of the claims he has brought forward, on the balance of probabilities. 6.2 . He was neither unfairly, unlawfully nor wrongfully dismissed. 6.3. He has also not shown that he suffered any distress. If he did, he was the author of his own predicament. 6.4. The suit fails in toto. 6 .5 . I make a no Order as to costs. Parties are reminded of their Right to Appeal. Dated this .. ....... day of ......... ........ ... .... , 2024. E. MWANSA HIGH COURT JUDGE Jl 5