Automated Summary
Key Facts
This appeal (No. 114/2022) concerns the termination of employment of Patrick Chisanga by Weir Minerals Central Africa Limited. The Court of Appeal overturned a lower court decision that had found the termination wrongful and unfair. The Court found the lower court made an unbalanced evaluation of evidence and erred in finding the appellant violated section 27(2) of the Employment Code Act, which requires communication of probationary assessment results to employees. The Court determined the appellant had communicated the assessment results verbally to the respondent and had provided him opportunities to be heard prior to termination. The Court found the termination justified based on the respondent's misconduct, including dishonesty, abuse of company resources, and use of abusive language.
Issues
- The court examined whether the termination was wrongful and unfair. It found that the provisions of section 27(2) were complied with as the assessment results were verbally communicated to the respondent. The court also found overwhelming evidence of the respondent's misconduct, including dishonesty and abuse of company resources, justifying the termination.
- The court found that the lower court erred by not hearing viva voce evidence when there was contradictory affidavit evidence. The trial judge made an unbalanced evaluation of evidence, focusing only on the respondent's evidence while ignoring the appellant's evidence about meetings discussing the assessment results.
- The court addressed whether the lower court had jurisdiction to hear the case after more than one year from the complaint was filed. The court determined that the case of Guardall Security Group Limited vs Reinford Kabwe had been overturned by the Supreme Court in Citibank Zambia Limited vs Suhayl Dudhia, rendering the jurisdictional argument invalid.
Holdings
The Court of Appeal held that the appeal substantially succeeded on grounds two and three. Ground one (jurisdiction) was found unmeritorious as the case of Guardall Security Group Limited vs Reinford Kabwe has been overturned by Citibank Zambia Limited vs Suhayl Dudhia. Ground two (failure to hear viva voce evidence) was found meritorious as the trial judge had an unbalanced evaluation of evidence. Ground three (wrongful and unfair termination) was found meritorious as the lower court erred in finding the termination wrongful and unfair. Grounds four and five (awards of damages) were academic and fell away.
Remedies
- The respondent was ordered to repay K34,375.00 to the appellant, which was erroneously paid as part of a settlement agreement.
- The respondent was required to pay the value of the iPhone, a company property taken without authorization.
- The respondent was awarded damages equivalent to 9 months of basic salary plus allowances with interest for wrongful termination of employment.
Legal Principles
- The court found the lower court erred in failing to properly consider whether the respondent was given an opportunity to be heard before termination, a key aspect of natural justice. The trial judge unbalanced evidence by not considering the appellant's evidence about meetings discussing the respondent's performance.
- The court determined the appellant did not breach sections 27(2) and 52(1) of the Employment Code Act as they communicated assessment results verbally to the respondent and his misconduct justified termination.
- The court focused on the substance of the evidence rather than its form, particularly in assessing the respondent's dishonesty. The court compared the respondent's reports with the tracking device reports to determine the facts, rather than focusing solely on the form of the evidence.
Precedent Name
- Guardall Security Group Limited vs Reinford Kabwe
- Citibank Zambia Limited vs Suhayl Dudhia
- Eston Banda and Another vs Attorney General
- Printing and Numerical Registering Co. vs Simpson
- Zambia National Provident Fund vs Chirwa
- Wilfred Weluzani Banda vs Medical Association of Zambia and The Attorney-General
- Masauso Zulu vs Avondale Housing Project Limited
- Sam Amos Mumba and Another vs Commerce Zambia Limited
- The Attorney-General vs Marcus Achiume
- Tebuho Yeta vs African Banking Corporation (Zambia) Limited
- WWF Zambia vs Brenda Ngosa Mukalula Tembo
- Hu He Rong vs Charity Oparaocha
Cited Statute
- Industrial and Labour Relations Act
- Employment Code Act (No.3 of 2019)
Judge Name
- M.M. Kondolo, SC
- Y. Chembe
- B.M. Majula
Passage Text
- In sum, the appeal substantially succeeds on account of the success of grounds two and three. Ground one was found to be unmeritorious and dismissed accordingly. Grounds four and five consequently fall away on account of the position we have taken in ground three.
- We are thus satisfied that the provisions of section 27 of the Employment Code Act were complied with and the learned Judge fell into grave error when he found otherwise.
- It is abundantly clear when the respondent's reports are cross referenced with the appellant's reports, that there are major discrepancies. There is not an iota of doubt in our minds that the respondent did misuse and abuse company resources as evidenced by the tracking device reports of the appellants.