Daka v Petauke District Council (Appeal 108 of 2011) [2015] ZMSC 173 (13 March 2015)

IN THE SUPREME COURT OF ZAMBIA HOLDEN AT NDOLA APPEAL NQ.108 OF 2011 (Civil Jurisdiction) BETWEEN: VICTORIA DAKA AND APPELLANT PETAUKE DISTRICT COUNCIL RESPONDENT CORAM: CHIBOMBA, WANKI, MALILA, JJS 2th December, 2014 and 13th March, 2015 For the Appellant: In person For the Respondent: Mr. S. Lungu - Messrs. Shamwana and Company JUDGMENT WANKI, JS, delivered the Judgment of the Court. CASES REFERRED TO: 1. 2. 3. National Airports Corporation Limited -Vs- Zimba and Another (2000) ZR 154. Gunton -Vs- London Borough of Richmond (1980) ALL ER 572. General Billposting Company Limited -Vs- Atkinson (1908) 1 CH. 537. 4. McClelland -Vs- Northern Ireland General Health Services Board 5. 6. (1957) 2 ALL ER 129. Abrahams -Vs- Performing Right Society (1995) I. R. L. R. 486 CA). Zambia National Provident Fund -Vs- Yekweniya Mbiniwa Chirwa (1986) ZR. 70 (S. C.). 7. Mususu Kalenga Building Limited, Winnie Kalenga and Richmans Money Lenders Enterprises (1999) ZR 27. WORKS REFERRED TO:- J2 8. 9. N. M. Selwyn’s Law of Employment. Ian Smith and Gareth Thomas, Smith’s and Wood’s Employment Law, 9th Edition. The appellant commenced this matter in the Industrial Relations Court by notice of complainant. In her complaint she challenged the respondent’s termination of her employment, with the respondent by way of dismissal. The facts before the trial Court as presented by the appellant were that she was discharged from employment by the respondent without following the laid down procedure. It was the appellant’s averment that she was charged with inciting riotous behaviour at the place of work, which allegation the appellant denied. The brief facts presented on behalf of the respondent at trial are that the appellant incited her workmates to riot and workers had rioted. The appellant was charged for inciting riotous behaviour and she was transferred to the Audit Section on temporary basis. The appellant exculpated herself and denied the charge against her and also refused to go to the Audit Section. The appellant was, therefore, suspended from duty. Subsequently, the Establishment Committee of the respondent J3 resolved to dismiss the appellant. The said resolution was ratified by the full Council at its meeting of 5th July, 2007. At the close of the proceedings in the lower Court, judgment dated 21st March, 2011 was passed. In the said judgment the trial Court confirmed the respondent’s decision to dismiss the appellant and accordingly, dismissed the appellant’s claim against the respondent. Being dissatisfied with the said judgment, the appellant appealed to this Court. In this appeal the appellant has advanced the following grounds of appeal: - 1. 2. 3. 4. That the learned trial Judge erred in dismissing the appellant’s claim against the weight of evidence favourable to her. That the Court below erred in law and fact by finding the appellant’s conduct as unlawful. That the Court below erred in law by failing to interpret the charge correctly. That the Court below erred in law by refusing to accept the omission in effecting the disciplinary procedures. The appellant who appeared in person did her best and presented written submissions in support of the foregoing grounds of her appeal. The respondent responded in writing. We J4 express through its Counsel. We must express our gratitude for the submissions from both parties which we found resourceful. We are cognizant of the fact that the appellant, a litigant in person before us, is not skilled in law and in crafting her grounds of appeal may have offended legalities procedurally and otherwise. We agree with the observations made by the respondent’s Counsel to this extent. In the premises we shall not deal with the individual grounds but we propose to deal with what appear to us to be the basis of the dispute between the parties in this appeal. It is our considered view that the main dispute between the parties herein is capsulated in the question whether the appellant was wrongly dismissed by the respondent. We say so because this cause of action is founded on wrongful dismissal. We must reiterate from the outset that an action for wrongful dismissal is distinct from a claim for unfair dismissal. However, there may be some overlap in certain instances. It is worth noting that the sole issue in wrongful dismissal is whether or not the employer has broken the contract of employment (see N. M. Selwyn, Selwyn’s Law of Employment, at page 387). Thus, the common law on wrongful dismissal looks basically at form, J5 not at substance, so that except in the case of purported dismissal for cause, the concept of wrongful dismissal is essentially procedural, and largely dependent upon the actual terms of the contract in issue. If a contract is for a fixed term or is expressly stated to be terminable only in certain ways and it is terminated before the term expires or in an improper way, that may be wrongful dismissal. More typically, however, is the case where the employer dismisses an employee with no or inadequate notice or purports to dismiss for cause where the facts do not justify such action (see Ian Smith and Gareth Thomas, Smith’s and Wood’s Employment Law, 9th Edition, at page 434). There are a number of ways in which wrongful dismissal may arise. Wrongful dismissal may occur where:- 1. 2. 3. The employer terminates the employment without notice, or with less notice than the employee is entitled to receive under the terms of his contract or the statutory provisions; A fixed term of contract is terminated by the employer before the due date of its expiration (see NATIONAL AIRPORTS CORPORATION LIMITED -VS- ZIMBA AND ANOTHER) t ); 1 3 A contract for the completion of a specific task is terminated by the employer before the task has ended; J6 4. 5. 6. 7. The employer terminates the employment without carrying out the disciplinary procedure which was incorporated into the employees’ contract (see GUNTON -VS- LONDON BOROUGH OF RICHMOND) (2); The employee is selected for redundancy in breach of a selection procedure which has been incorporated into his contract; The employer repudiates the contract, his actions indicating that he no longer intends to be bound by the contract (see GENERAL BILLPOSTING COMPANY LIMITED -VS- ATKINSON) (3) ; and The contract specifies that a dismissal may only take place in certain specified circumstances or on specified grounds, and the employer dismisses for some other reason not stated in the contract (see MCCLELLAND -VS- NORTHERN IRELAND GENERAL HEALTH SERVICES BOARD) (4) and see also (N. M. Selwyn, Selwyn’s Law of Employment, 14th Edition, at page 384). It is worth observing here that if the contract of employment expressly permits the employer to terminate the employment without notice on the payment of a sum of money in lieu of notice, and the employer summarily dismisses the employee, the dismissal is not wrongful, whether or not the employer pays the money in lieu of notice, because he is acting within the strict terms of the contract. In such circumstances, the employee may sue for the sum due under the contract, as liquidated damages, and the employee is under no duty to mitigate against his loss J7 (see N. M Selwyn’s Law of Employment, 14th Edition, at page 384, and ABRAHAMS -VS- PERFORMING RIGHT SOCIETY. 5 ) Further, an employer who dismisses an employee for committing an offence for which the appropriate punishment is dismissal commits no wrong notwithstanding the failure to follow the procedure laid down in the contract prior to the dismissal. We are fortified by our decision in ZAMBIA NATIONAL PROVIDENT FUND -VS- YEKWENIYA MBINIWA CHIRWA. <6) In that case we had the following to say:- “Where it is not in dispute that an employee has committed an offence for which the appropriate punishment is dismissal and he is also dismissed, no injustice arises from a failure to comply with the laid down procedure in the contract and the employee has no claim on that ground for wrongful dismissal or a declaration that the dismissal is nullity.” The appellant had an employment relationship with the respondent. This relationship was governed by the Conditions of Service which applied to the appellant and the statutory provisions. The respondent terminated this relationship by dismissal which action is being challenged by the appellant. The appellant herein argued that the lower Court was wrong to dismiss her, a claim founded on wrongful dismissal against the J8 weight of the evidence favourable to her. The gist of the response is that the appellant failed to prove her case in Court below. The respondent lawfully dismissed the appellant from employment. Therefore, the lower Court was on firm ground when it dismissed the appellant’s claim. We hasten to state that we were not persuaded by arguments advanced by the appellant. However, the argument advanced on behalf of the respondent resonates with our position herein. We painstakingly examined the Record of Appeal herein. We looked for evidence alleged to be in favour of the appellant and the alleged error on the part of the lower Court but found none. It is our firm view that the lower Court rightly found that the appellant failed to prove her claim and that the respondent properly dismissed her. The findings of the lower Court were supported by evidence and there is no need for us to disturb the said findings. The issues raised by the appellant in grounds two and three were never subject of the lower Court’s determination. Therefore the appellant cannot competently raise them before us. We wish to repeat what we said in MUSUSU KALENGA BUILDING J9 LIMITED, WINNIE KALENGA AND RICHMANS MONEY LENDERS ENTERPRISES <7) thus: “We have said before and we wish to reiterate here that where an issue was not raised in the Court below it is not competent for any party to raise it in this Court.” The upshot is that we find no merit in this appeal and we accordingly dismiss it. H. Chibomba, SUPREME COURT JUDGE. M. E. Wanki, SUPREME COURT JUDGE. SUPREME COURT JUDGE.