Zambia National Broadcasting Corporation v Banda (Appeal 46 of 1999) [2000] ZMSC 108 (9 August 2000)

IN THE SUPREME COURT FOR ZAMBIA HOLDEN AT KABWE APPEAL NO. 46/99 BETWEEN: ZAMBIA NATIONAL BROADCASTING CORPORATION APPELLANT AND CHARLES BANDA RESPONDENT Coram: Chaila, Muzyamba, Lewanika, JJS. On 18th April, 2000 and 9th August, 2000 For the Appellant: E. B. Mwansa of E. B. M. Chambers For the Respondent: K. Hang’andu of Central Chambers Lewanika, JS, delivered the Judgment of the court. JUDGMENT This is an appeal against the decision of the Industrial Relations Court as decided that the respondent whose employment had been terminated by the appellant be deemed to have been given early retirement. The respondent was employed by the appellant as a Programme Manager and was a unionised employee whose conditions of service were covered by a collective agreement entered into between the appellant and the respondent's union. By letter dated 25lh November, 1996, the appellant suspended the respondent from employment indefinitely pending investigation of various allegations made against him. By letter dated 14th March, 1997, the appellant informed the respondent that the investigations had established that the allegations against the respondent were baseless. However, the same letter informed the respondent that investigations had revealed that the -J2- respondent and his wife were the proprietors of Ngalawa* Communications a firm that sought to do business with the appellant and that the respondent was in breach of a circular dated 13th November, issued by the Appellant's Director General and also in breach of Article 29 of the Appellant's disciplinary code. The appellant therefore decided to terminate the respondent's employment on the basis that the respondent's firm was in conflict with their interests. The appellant terminated the respondent's employment by offering to pay one month's salary' in lieu of notice and other benefits and allowed the respondent to stay in the house for one month. The respondent then instituted proceedings in the Industrial Relations Court pursuant to Section 85(1) Of The Industrial and Labour Relations Act Of 1993 claiming inter-alia: - 1. A declaration that the said dismissal/termination is unlawful and unwarranted therefore null and void. 2. order retirement. 3. Order that the complainant be paid salary, allowances and other monetary benefits due to him from the date of the purported dismissal up to the date of his retirement. 4. Compensation, damages for loss of earnings and breach of contract. 5. Any other relief deemed fit and equitable. On the evidence before it the trial court came to the following conclusion:- -J3- "what the respondent should appreciate is the fact that termination is the general terminology which embraces dismissal, retirement, resignation and discharge. Since the Appellant was paid nothing and in view of the fact that the penalty in item 29 of the disciplinary offence is dismissal which is also the penalty at the bottom of the circular in the respondent's supplementary notice to produce, we unanimously hold that the applicant was terminated by way of dismissal. As that dismissal was in violation of the laid down disciplinary procedure which is a contractual obligation which both the respondent and the employee should comply with, the Applicant's dismissal was unfair. Consequently, we order that the Applicant be deemed to have been given early retirement in accordance with clause 14(b)(i) of the Conditions of Service which attracts interest at commercial bank rate effective from the date he was purportedly terminated till payment is effected." This conclusion by the trial court is indefensible and flies in the teeth of the evidence. The respondent's conditions of service, as we have stated earlier, are contained in a Collective Agreement entered into between the Appellant and the respondent’s union. This agreement is to be found from page 38 to page 61 of the case record. Clause 7 ( c ) of this agreement provides as follows:- -J4- z 7. ( c ) "During employment, either party may terminate the employment at any time by serving not less than 30 days written notice on the other. In the alternative, either party may pay salary in lieu of notice." In accordance with the Conditions of Service the appellant was entitled to terminate the respondent's employment by paying him one month's salary in lieu of notice which is which it did by its letter dated 14lh March, 1997. We would accordingly allow the appeal and set aside the Order of the Court below and order that the respondent is only entitled to one month's pay in lieu of notice together with any other accrued benefits such as leave pay. Given the circumstances of the parties, we shall make no order as to costs. M. S. CHAILA W. M. MUZYAMBA SUPREME COURT JUDGE SUPREME COURT JUDGE D. M. LEWANIKA SUPREME COURT JUDGE