Warren Chabala Chibale v Mopani Copper Mines Plc (Appeal No. 1/2023) [2024] ZMCA 306 (28 November 2024)

IN THE COURT OF APPEAL OF ZAMBIA HOLDEN AT LUSAKA Appeal No. 1/2023 (Civil Jurisdiction) BETWEEN: WARREN CHABALA CHIBA AND 2 8 NOV 2024 'VlLREG!STP. Y X 50067• PPELLANT MOPANI COPPER MINES PLC RESPONDENT Coram: Kondolo SC, Majula and Chembe, JJA On 19th September, 2024 and 28th November, 2024 For the Appellant Mr. K. Mwiche of Messrs. Christopher Frightone Legal Practitioners For the Respondent Mr. A Gondwe & Mr. M. Zulu, both In House Counsel for Mopani Copper Mines Plc JUDGMENT MAJULA JA, delivered the Judgment of the Court. Cases referred to: 1. 2. Hopper v. British Railways Board (1988) IRLR 517. Attorney General v. Marcus Kampumba Achiume (S. C. Z. Judgment 2 of 1983) 3. Barclays Bank Zambia PLC v. Stephenson Zawanji Gondwe (SCZ Appeal No 135 o/2016) 4. Amos Mwansa v. BP Zambia Plc- SCZ Appeal No. 128A of 2011 J2 5. 6. 7. 8. Kunda v. Konkola Copper Mine PLC - SCZ Appeal Number 48 of 2 005 Nchindika Nankolonga v. Zambia National Building Society - CAZ Appeal 287/ 2022. Attorney-General v. Richard Jackson Phiri (1988-1989) ZR 121 Zubao Henry Juma v. First Quantum Mining & Operations Limited Road Division - CAZ Appeal No. 102/ 2024 Legislation referred to: 1. Employment Code Act, No. 3 of 2019 Authoritative Texts 1. Naomi Ellenbogen, Barry Mordsley, Christopherl Osman, Timothy Brennan Butterworths Employment Law: Practice Procedure and Precedents (2007) L exisNex is Butterworths: London (UK) 1.0 Introduction 1. 1 This appeal originates from the decision of t h e Honourable Mr. Justice Pengele that was delivered on 7 th October, 2022. In the judgment, th e learned Judge ruled in favour of the Respondent. 2.0 Background 2 .1 The Appellant was an employee of the Respondent from 13 th October, 20 11 when he was employed as a winding house attendant. 2.2 He later rose through the ranks to the position of Control Buffer Stores. He was eventually dismissed from employment on 23 rd J3 August, 2019 after he was found guilty by the Respondent's disciplinary committee. Prior to his dismissal he allegedly connived with another employee at the Respondent to remove drill bits from the Respondent's premises without permission. 2.3 The Appellant vehemently denied the allegations. The Respondent on the other hand instituted investigations which revealed that on 1st April, 2019, the security department found brand new drill bits belonging to the Respondent in possession of one Brian Mulenga an employee of the Respondent. Brian Mulenga informed the security team that the drill bits were given to him by the Appellant. 2.4 The Appellant confirmed that he found three boxes of drill bits on 1st April 2019 near the scrap metal deposit site. He thereafter moved them to the buff er store and left them in the custody of Brian Mulenga from April, 2019 to August, 2019. 2.5 Brian Mulenga further explained that he was given the drill bits for the purpose of having them removed through an employee of Chimwenda Investments Ltd (a Contractor of the Respondent) without authorization. 2.6 The Appellant was subsequently charged with the offence of attempting to remove company property from the plant and works area without authority contrary to clause 3 of the J4 Disciplinary Code and Grievance Procedure for represented and non-represented workers. 2. 7 He tendered in an exculpatory statement and was thereafter subjected to a disciplinary hearing. He was found guilty and dismissed. His appeal within the Respondent's structures was also rejected. 2.8 The Appellant issued a writ and statement of claim alleging that his dismissal was wrongful, unfair and unlawful. He sought damages as well as payment of all benefits. 3.0 Decision of the Lower Court 3.1 In determining the case, the learned Judge made it plain to the parties that the Court's role was not to sit as an appellate court against the disciplinary. tribunal. The Court stated that its role was to determine whether the disciplinary tribunal had valid disciplinary powers which were validly exercised. In addition, it was concerned with determining whether the decision arrived at by the disciplinary tribunal was supported by a substratum of facts. 3.2 After scrutinizing the evidence, the lower Court found as a fact that the Respondent had valid disciplinary powers over the Appellant derived from the Disciplinary Code and Grievance Procedure. That this power was validly exercised JS notwithstanding the fact that Brian Mulenga and Timothy Chipapa were not called at the disciplinary hearing for the Appellant to cross-examine them. 3.2 It was the view of the trial Judge that in any case, the Appellant was at liberty to call them if he so wished. The court concluded that there was a substratum of facts as the Appellant was found to be part of a scheme to take the drill bits out of the Respondent's premises. All his claims were ultimately dismissed. 4.0 Grounds of Appeal 4.1 Being dissatisfied with the judgment of the lower court, the Appellant has appealed on the following grounds: 1. The court below erred in law and in fact when it completely excluded the evidence on record and as conceded by D Wl that the Appellant was never at any time found in possession of the drill bits to warrant the offence of attempting to remove company property. 2. The court below erred in law and facts when it held that, the Appellant failed to adduce evidence in relation to what benefits were not paid to him by the defendant. J6 5 .0 Appellant's Arguments - Ground one 5.1 On the 3 rd of January 2023, the Appellant filed into Court his heads of argument supported by a list of authorities. He pointed out that he was charged with an offence by the Respondent for allegedly attempting to remove drill bits from the Respondent's premises. However, it is argued that the Appellant was never involved in any such attempt. The Appellant's dismissal is therefore seen as unjustified and not based on substantial evidence. 5.2 The Respondent is accused of not following proper procedures in dismissing the Appellant. The dismissal decision was allegedly made without thorough investigation and disregarded the legal requirements for a fair dismissal. 5.3 To strengthen their argument, Counsel for the Appellant cites Butterworths Employment Law: Practice Procedure and Precedents1 to emphasize that summary dismissal should not be hasty. It must be supported by a valid reason and comply with the law, including allowing the employee to present their side and follow appeal procedures. 5.4 The Court below is criticized for excluding important evidence that could have exonerated the Appellant. Specifically, it is argued that the Court overlooked testimony and records showing that the drill bits in question were found at a location J7 where the Appellant was not in charge and that the Appellant was not involved in any attempt to remove these items. 5.5 The Appellant asserts that the Court misdirected itself by concluding that the Appellant was not wrongfully dismissed. It is emphasized that the allegations against the Appellant were not proved, particularly the claim that the Appellant attempted to remove company property. 5.6 According to the Appellant, wrongful dismissal is defined as a breach of contract or dismissal based on unproven allegations. The argument is made that in this case, the dismissal was not justified, as the main allegation (attempting to remove company property) was not substantiated by evidence. 5.7 The Appellant cites the case of Hopper v British Railways Board1 , emphasizing that courts should base their decisions on the actual facts and evidence present at the time of dismissal. It has been argued that the Court should have looked for the substratum of facts that were before the disciplinary committee, which did not support the dismissal. 5.8 It is forcefully argued that the Respondent attempted to manufacture evidence to wrongfully implicate the Appellant. Counsel states that the Respondent's efforts to connect the Appellant to the offence were unfounded. JS 5.9 In rounding off on ground one , the Appellant reiterates that the Court below made an error in its judgment due to a lack of factual and legal basis for its conclusion. The Appellant contends that the dismissal was not justified and should be overturned. 6.0 Arguments on Ground two 6.1 Turning to the second ground, the Appellant asserts that the lower court made an error in law and fact by holding that the he did not present evidence regarding benefits that were not paid by the Respondent. The Appellant's claim for these benefits was part of the broader argument for wrongful dismissal. 6.2 The Appellant goes to on aver that during the trial, the Respondent failed to prove that the he had received all the terminal benefits due to him. He had sought payment for these benefits, as outlined in the Writ of Summons, relying on statutory provisions of the Employment Code Act 1 . The argument is fortified by referencing Section 50( 1) of the Employment Code Act 1 , which stipulates that an employer cannot summarily dismiss an employee except under specific circumstances, such as misconduct for which the prescribed punishment is summary dismissal. 6.3 The Appellant has stressed that the Respondent failed to produce evidence to substantiate their claim that he had been paid all accrued benefits up to the dismissal date. Therefore, the J9 court below should have found in his favour. On that basis, the Appellant implores the Court to allow this ground of appeal, emphasizing that the lower court's judgment was flawed due to the lack of evidence and incorrect application of the law. 7.0 Respondent's Arguments 7 .1 In their heads of argument opposing the appeal, the Respondent avows that the learned trial Judge was justified in excluding certain evidence from the record. Specifically, it is noted that DWl (a witness) conceded that the Appellant was never found in possession of the drill bits at any time, which would have been necessary to substantiate the offence of attempting to remove company property. The Respondent argues, however, that there were other pieces of evidence which the disciplinary committee relied on which pointed to the Appellant as the perpetrator of the offence. 7 .2 The Respondent further affirms that the Judge did not make an error in law or fact when delivering the judgment. Counsel argues that the decision was based on the substantiated facts and evidence available, which showed that the Appellant had indeed been in possession of the drill bits and had given instructions concerning them. Although DWl testified that the Appellant was not found in actual possession of the stolen drill bits, the investigation linked the Appellant to a scheme to remove the drill bits from the Respondent's property. The Judge JlO was able to conclude from the evidence that the Appellant was indeed attempting to remove company property, thus justifying the decision. 7.3 The Respondent argues that the Court found that it had conducted thorough investigations, which demonstrated that the Appellant had committed an offence that warranted dismissal under the Respondent's Disciplinary Code and Grievance Procedure. It has been submitted that the Court below found that the Appellant was initially in possession of the drill bits, which were subsequently taken to the Mobile Storehouse under Brian Mulenga's charge. The drill bits were traced back to the Appellant, who was implicated in the scheme to remove them without permission. 7.4 The Respondent's investigation included a recorded statement from Timothy Chipapa, an employee of the Respondent's contractor company. The statement revealed that the Appellant instructed Chipapa to take three boxes containing drill bits to the Mobile Storehouse, under Brian Mulenga's charge, further implicating the Appellant in the scheme. The Respondent defends the Court's decision by outlining the evidence and investigation that linked the Appellant to the attempted removal of the drill bits, thereby justifying the dismissal. 7.5 The Respondent argues that the evidence cited by the Appellant cannot be considered in isolation. Specifically, it addresses the Jl 1 claim that only Ntazana Simutowe could have implicated the Appellant in the scheme to remove the drill bits. The Respondent presented documentary evidence showing that the Appellant was charged according to the Disciplinary Code, leading to his dismissal. This evidence included statements from various individuals involved or instructed by the Appellant such as one Brian Mulenga, and a thorough investigation report that confirmed the facts were not manufactured. To buttress the argument, the Respondent references the case of Attorney General v. Marcus Kampumba Achiume2 , where the Supreme Court held that an appeal court would not overturn findings of fact made by a trial judge unless those findings were perverse or based on a misapprehension of the facts. The Respondent asserts that the Judge was on firm ground in concluding that the Respondent's investigation correctly identified the Appellant as the source of the drill bits. 7 .6 The Respondent notes that the Appellant relied on the case of Barclays Bank Zambia PLC v. Stephenson Zawanji Gondwe3 , which in their view supports the finding and holding of the trial court. 7. 7 The Respondent argues that the Appellant's claim that he had to have been caught red-handed for the charge to be valid is erroneous. The case involves connivance, and the evidence shows that the Appellant played a crucial role in the scheme, even if not physically present at the scene. J12 7.8 In furtherance of their submissions, the Respondent referred us to the Supreme Court case of Amos M wansa v BP Zambia Plc4 . In the cited case, the Appellant was dismissed for removal of company property even though he was not at work on the day of the incident. The court held that the Appellant was considered the mastermind of the offence and had coordinated with others to facilitate the theft. 7.9 The Respondent argues that the Appellant's defence, which focuses on his physical absence at the time of the theft, is misplaced. The disciplinary charges did not require the Appellant to be physically present at the scene to be culpable. 7 .10 Based on the legal authorities cited earlier, the Respondent submits that the trial Judge was correct in determining that the dismissal of the Appellant was neither wrongful nor unfair. 7.11 Moving on to ground two, the Respondent argues that the Court below was justified in holding that the Appellant failed to provide evidence regarding which benefits were not paid. This is supported by the Court's examination of the Appellant's testimony, which revealed that no specific evidence was presented to show what benefits were unpaid. 7 .12 Pertaining to the Appellants claim that the Respondent failed to produce evidence showing that certain amounts of money were paid to him and did not adequately explain why other accrued J13 benefits had not been paid up to the date of dismissal, the Respondent counters by emphasizing that the burden of proof lies with the Appellant. Solace for this proposition was placed on the case of Kunda v. Konkola Copper Mine Plc5 , where the Supreme Court stated that it is the responsibility of the party making the allegations to prove them. The principle that "he who alleges must prove" is fundamental in law. 7. 14 The Respondent refers to the record of appeal (pages 161-163) which includes a letter of employment. This letter outlines that the Appellant was to be paid a salary and a housing allowance calculated at 30% of his pay, implying that this was part of the evidence considered. 7 .15 The Respondent submits that at the time of the Appellant's summary dismissal in September 2019, all dues, including salary and housing allowance, were paid as per the terms of the employment offer. This was confirmed by DW2 in the Respondent's Witness Statement, as cited from the Record of Appeal. 7.16 It has been contended that the Appellant did not specify in court what additional benefits he was claiming, aside from those outlined in the employment offer. The Respondent agrees with the lower court's judgment that the Appellant should have presented documents or evidence to support the claim for other benefits. Jl4 7.17 The Respondent concludes that the Appellant has failed to prove his case on the balance of probabilities. Therefore, he requests that the appeal be dismissed in its entirety, with costs, as it lacks merit and is seen as an abuse of the court process. 8.0 Hearing of the Appeal 8 .1 The appeal was heard on 19th September, 2024. Both counsel placed reliance on the heads of argument that had been filed and also made brief submissions by way of em phasis. 8.2 On behalf of the Respondent, Mr. Gondwe submitted that the appeal against the judgment of the lower court is purely based on findings of fact which can only be upset in clear circumstances. 8.3 In respect of ground two, Mr. Gondwe argued that the lower court cannot be faulted when it found that the Appellant did not addu ce any evidence to prove that he was not paid his terminal benefits. This is so in that the onus lay on the Appellant to prove his case before the Court below. Mr. Gondwe urged us to dismiss the appeal with costs. 8.4 In reply Mr. Mwiche conceded that there was no evidence in the court below which pointed to the fact that the Appellant was not paid accrued benefits. He stated that the ground of appeal is J15 wholly anchored on the provisions of the Employment Code Act, No. 3 of 2019. 9.0 Consideration and decision of the Court 9.1 We have conscientiously examined the record of appeal, the submissions of counsel and the authorities cited. 10.0 Ground 1- Procedural Fairness 10. 1 What we deduce from the record is that in ground one of the appeal the Appellant highlights his grievance of the dismissal by the Respondent citing procedural unfairness and the validity of the dismissal. The appeal argues that there was no evidence presented at trial to justify the charge of misconduct or the subsequent summary dismissal of the Appellant. 10.2 In response , the Respondent defends the trial Judge's actions and decisions, claiming that the findings of fact, exclusion of evidence and the final judgment were both correct and based on the facts presented during the trial. 10.3 Arising from the grounds of appeal and the submissions of the parties, the main issue for determination is whether the learned trial Judge was correct to find that the Appellant was not wrongfully, unfairly and unlawfully dismissed. 10.4 It is trite that in proceedings of wrongful dismissal, the role of the court is not to sit as an appellate tribunal against decisions J16 of the domestic disciplinary tribunals. The court's role is to determine whether t he disciplinary committee had the necessary powers and the same were validly exercised 1n dismissing an employee. (see Nchindika Nankolonga v. Zambia National Building Society6). The Court may also consider the substratum of facts to support the decision made. We stand guided by the case of the Attorney-General v. Richard Jackson Phiri7 where it was held: " ... it was incumbent upon the learned trial commissioner to have regard to the general principle which was conceded by Mr. Silweya, that the court cannot be required to sit as a court of appeal from the decision of the Public Service Commission to review its proceedings or to inquire whether its decision was fair or just or reasonable. 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. " 10.5 A perusal of the record shows that the Appellant was charged with the offence of attempting to remove company property without permission. The charges were slapped on him following a meticulous investigation that was conducted by security officers after they discovered three boxes of drill bits at the J17 mobile warehouse under the charge of Brian Mulenga. The offence of unauthorized removal of company property is set out in clause 3 of the Disciplinary Code and Grievance Procedure of the Respondent. This entails that the Respondent did possess the necessary power to charge the Appellant. 10.6 Turning to the issue of whether the powers were validly exercised or whether there was procedural fairness. We note from the record that when the Appellant was charged, he exculpated himself in a statement dated 23rd August, 2019 . He basically denied the charge but stated that when he saw the drill bits in July, 2019, he decided to hand them over to Brian Mulenga th e mobile equipment storeman. 10. 7 The disciplinary committee eventually found that there was overwhelming evidence to prove that he had connived with Brian Mulenga to remove company property without permission. Although he was not caught red-handed with the drill bits, he was still considered to be part of the scheme to r emove them. This conclusion was reached despite the Respondent's failure to call Brian Mulenga and other witnesses, whose statements were collected during the disciplinary hearing. Fortification for this is in the case of Amos Mwansa v. BP Zambia Plc4 whose facts are on all fours with the case in casu. In the Amos Mwansa v. BP Zambia Plc4 , the Apex Court upheld a dismissal of the Appellant stating that even though he was not present at the scene of crime, he was nonetheless the J18 Mastermind of the offence and had connived with others to facilitate the theft of company property. The Court was of the firm view that there was in existence a substratum of facts to support the disciplinary committee's decision to dismiss the Appellant. 10.8 From our perspective, we are satisfied in the present case that the Respondent's disciplinary body had valid powers to act and they exercised those powers validly and observed the rules of natural justice. 10.9 In light of the foregoing, we find that the criticism of the trial Judge's finding in this regard was unfounded. It is our considered view that the charges against the Appellant were substantiated and led to his dismissal. The witness statements and investigation report provided a substratum of facts that supported the decision of the tribunal. 11.0 Ground two - Accrued benefits 11. 1 In the second ground of appeal, the grievance of the Appellant emanates from non-payment of accrued benefits. The Appellant has contended that the Respondent did not give him his accrued benefits which stem from the Employment Code Act. J19 11.2 The Respondent on the other hand has argued that all his terminal benefits were paid to him as contained in his con tract of employment. 11.3 We have reflected on these arguments and have scrutinized the employment contract as well as the provisions of the Employment Code Act specifically section 50(2) relied upon by the Appellant. What we have been able to glean from the employment contract is that the Appellant was entitled to a salary and housing allowance calculated at 30% of his pay. Following his summary dismissal, the evidence from DW2 (the Respondent's witness) was that the Appellant was paid all his dues i.e. salary and housing allowances. The learned trial Judge observed that the issue of benefits was only alleged in the pleading and written submission with no specific supporting evidence. In the case of Kunda v. Konkola Copper Mines Plc5 the Supreme Court held as follows: ''He who alleges must prove the allegations. This principle although so elementary this Court has on a number of occasions reminded litigants that it is their duty to prove their allegations and not for the Defendant to prove his innocence or his case. " 11.4 The Appellant having been dismissed is only entitled to the accrued benefits enumerated in his contract which were salary, any accrued leave days and housing allowance up to the date of J20 envisaging would be outside of the contract of employment or the Employment Code Act. In any event Counsel for the Appellant, Mr. Mwiche conceded at the hearing that there was no evidence led to substantiate the claim for additional benefits. 11.5 For the foregoing reasons, the attack on the trial Judge for his failure to award additional benefits cannot be sustained. We accordingly find no merit in the second ground of appeal and dismiss it. 12.0 Summary 12.1 In a nutshell, the following are our findings: 1. There was procedural fairness in the manner that the disciplinary hearing was held. The Court cannot act as an appellate tribunal and in this instance, it was on firm ground to hold that the Respondent had valid disciplinary powers and exercised them validly. 2. Notwithstanding that the Appellant was not caught red-handed, the reasons provided for the attempted removal of the drill bits were sufficient and justifiable under the law. 3. The Appellant did not discharge the burden of proof as the claim for unpaid benefits was unsubstantiated. The dismissal not being wrongful entails that the only benefits the Appellant is entitled to are those contained in his employment letter 1.e. salary, housing allowance and any accrued leave days. .... 13.0 Costs J21 13. 1 This matter having emanated from the Industrial Relations Division of the High Court, each party will bear their costs. M. M. Kondolo , SC COURT OF APPEAL JUDGE B. M. ajula Y. Chembe COURT OF APPEAL JUDGE COURT OF APPEAL JUDGE ~ .... .. ..... .. .. .... ..... .. .. ... ...... ....