Chibinga Lenford v Ministry of Health and Anor (COMP/IRC/No. 128/2003) (30 September 2025) – ZambiaLII

JN THE HIGH COURT FOR ZAMBIA COMP/IRC/No.128/2003 INDUSTRJAL RELATIONS DMSION HOLDEN AT LUSAKA (Civil Jurisdiction) BETWEEN: CHIBINGA LENFORD COMPLAINANT AND MINISTRY OF HEALTH 1 s-r RESPONDENT THE ATTORNEY GENERAL 211D RESPONDENT Coram: Before Mrs. Justice M. S. Ngoma this 30th day of September, 2025. For the Complainant In person. For the Respondent C. Simuusa.fromAttomey General's Chambers. JUDGMENT Legislation referred to: l. Employment Code Act No. 3 of 2019. z. Employment Act, Chapter 268 of the La.ws of Zambia. l. Eston Banda & Another v Attorney General (Appeal 42 of 2016) [2019] ZMSC 7. 2. Supabets Sports Betting v Kalimukwa (110 of 2016) {2019] ZMSC 27 (8 October 2019}. J1 3. Zulu and Anor v Barclays Bank of Zambia (SCZ 17 of 2003} (2004] ZMSC 119. 4. Zambia. National Provident Fund v Yekweniya Mbiniwa Chirwa (SCZ Judgment No. 18 of I 986} (1986/ ZMSC 27. 5. Silflo v Mend-A-Bath Zambia Ltd a:n.d Anor (Appeal 168 of 2014} {2017] ZMSC 227. 6. The Attorney General v Richard Jackson Phfrl (1988-1989) ZR. 121. 7. Barclays Bank Zambia PLC v Gondwe (135 of 2016} [2019/ ZMSC 240. 8. Chlmanga Chango. v Stephen Chipa.ngo Ng'ombe SCZ Judgment No. of 5 2010. of 9. Konkola Copper Mines PLC v Slmwinga (Appeal 147 2015) (2019} ZMSC3l6. l O. Jennifer Nawa v Standard Chartered Bank SCZ No. l of. 2011. 11. Khalid Mohammed v The Attorney General {1982} ZR 49. INTRODUCTION 1. The complainant was employed by the Choma District Health Board as an Accounting Assistant before he was dismissed from employment, causing him to commence this matter before this Court seeking the following reliefs: i. Damages; ii. Compensation; iii. Payment of leave days owing; w. Interest at the current bank rate; v. Costs and any remedy the court may deem fit. 2. The complainant made an application to substitute the Choma District Health Board, the initial respondent, w'ith the Ministry of Health through the Attorney General following the dissolution of health boards in 2006, whose activities and liabilities were taken over by the Ministry of Health. J2 COMPLAINANT'S AFFJDAVIT EVIDENCE 3. The complainant testified that he was unlawfully dismissed on the 17th November 2000, without being given time to exculpate himself. He claimed that he was wrongly charged with unlawfully withdrawing fuel on the 18th August 2000, 22nd September 2000 and 25th October 2000, after he had already been dismissed. 4. He fw-ther testified that at the time of his dismissal, he was not given time to lawfully hand over certified documents showing or acknowledging the unaccounted sum of K14, 015, 724.00 {all amounts stated herein are unrebased) and he was never called to witness the auditing as per procedure. 5. The complainant denied the charge of failing to account for cash of K2, 477, 850.00 on 191h December 2000 which came after he had already been dismissed. He averred that the dismissal letter of 14th February 2001 and that of 16th March 2001 did not state the grounds on which he was charged and the letters were not copied to the Labour Officer within 4 days from the date of writing as is required by law in the event of summary dismissal. 6. He further testified that the respondent used a wrong formula m calculating his leave days by using years as opposed to days. He stated that from March 1997 to November 2000 when he was dismissed, he accrued 113 days multiplied by the daily rate of K9, 054 resulting in Kl, 023, 102.00 less what was paid of K615, 382.40, leaving a balance of K404, 719.00 as the balance. RESPONDENT'S AFFIDAVIT EVIDENCE 7. The respondent's affidavit was deposed to by Rhoda Fumukazi Mkandawire, the District Director of Health at Choma District Health Board. She testified J3 that the complainant was properly charged and dismissed from employment after necessary investigation. 8. She averred that the complainant was only dismissed on 17th November 2000 and not 17th November 2001. She added that the complainant's detention had nothing to do with the respondent whose only involvement was to report the matter to the Police as it was criminal in nature. HEARJNG 9. At the hearing, the complainant appeared in person and testified on his own behalf. The respondent was represented by C. Simuusa from the Attorney General's chambers. 10. The complainant testified that he was called for a hearing on 10th February 2001 and was first asked if he had anything to add to his exculpatory letter. In response, he stated that he wished to be availed the information relied on in the charge letter. However, he was not availed the evidence on the first charge and he asked if the respondent had a witness to confirm that he withdrew the fuel from the filling station and no one was brought. The complainant further asked for invoices and unacquitted general vouchers and neither was provided. He further asked for the cash reconciliation which was done when he was suspended which he knew he had handed over to R. Shonga when he went on leave, however, this was not presented. He testified that all the facts in the charge sheet had no supporting evidence to prove the allegations. As such, he was of the view that he was not afforded a fair hearing. 11. He referred to the dismissal letter marked as "CL7» in his bundle of documents and stated that he was shocked that the dismissal was to take th effect on 17 November 2001. He testified that he was not informed why the dismissal was post-dated and he decided to wait for the said date to see what would happen. He added that the dismissal letter did not contain the J4 grounds or make reference to the code of conduct regarding the offence committed. The letter made reference to the Board but there were no minutes of the Board Meeting. Additionally, the letter did not have the minutes of the disciplinary committee to show how the respondent arrived at its decision. He testified that he could not appeal as the Board was the highest body. 12. He further testified that while he was waiting for the 17th November 2001, he received another letter marked as "CL8" in his bundle of documents, to the effect that his dismissal was effective on 17th November 2000. He stated that he was surprised because no reason was given for back-dating his dismissal to the date of his suspension. It was further surprising as the same Board kept paying his salaries until January 2001. In view of the respondent's flouting of disciplinary procedures, he decided to commence this action as he was unlawfully dismissed on 17th November 2000. 13. The complainant averred that as a result of his dismissal, he lost his income, suffered emotional distress and his professional reputation was damaged, as such, it was difficult to find employment due to the manner the respondent handled his matter. He stated that his financial instability had continued, as such, he was seeking the reliefs as contained in his notice of complaint. 14. ln cross-examination, the complainant testified that he was employed as an Assistant Accounting Officer and he confirmed that his responsibilities did not include drawing fuel as the person responsible for drawing fuel was the driver. He further confirmed that he would raise the coupons as they were in his custody. He also confirmed that he had the task of raising vouchers and the drivers would only draw fuel upon being issued with a coupon. The complainant added that it was not possible for the drivers to draw fuel without a coupon as that was the only authority. JS 15. The complainant confirmed that he handed over the missing coupons stated in his charge letter to R. Shonga, the Manager Administration. He testified that he was informed of the specific offences he was charged with, among them being drawing fuel without coupons which was contrary to procedure, although he denied that he was the one drawing the fuel or that he authorised the drivers to do so. 16. Still under cross examination, the complainant confirmed that he was accorded an opportunity to be heard and that he was fully aware of what he was charged with, and finally that the committee made a finding to dismiss him following the hearing. 17. In re-examination, the complainant testified that in terms of supporting documentation regarding the fuel coupons, all the documents that he had were taken by the financial specialist. He stated that after receiving his final warning letter, he took leave to visit the Central Board of Health Head Office and upon his return on 171h November 2000, he found the financial specialist with other auditors and that he had no time to get handovers from R. Shonga. At the end of the day, they (including his colleagues in his department) were given suspension letters and told to vacate the offices. He insisted that he makes handovers properly as an Assistant Accounting Officer, however, the financial specialist forced them to leave the office and did not want them to take any document out of the office. That was how the report on the missing coupon books was left in is drawers. 18. The respondent called Rhoda Fumukazi Mkandaw:ire ("RWl") as its sole witness. She testified that financial auditors visited their institution and produced a report. Based on their recommendations, the report was given to the human resource as there were issues of fuel mismanagement, filing or misfiling of vouchers and intended recipients had not received the cash they should have received. JG 19. She testified that the human resource team conducted their o,ivn investigations using the audit report and the GRZ Disciplinary Code of Conduct. After completing their investigations, they charged the officers involved from Accounts. In the charge letters, they asked the officers to exculpate themselves. After receiving the exculpatory letters, the human resource called for a hearing. Again, the officers were asked if they had anything to say which was not included in their exculpatory letters. 20. The human resource wrote letters to inform the Board and the officers. The Board then called for their own discipHnary hearing. As the Board was the secretariat, it was up to them to uphold or reverse the recommendation to the District and they decided to uphold it. After the auditors left, they requested for the Southern Province financial specialists to assist the Board in providing mentorship and finding new staff. 21. In cross-examination, RWl stated that the suspension was meant to facilitate investigations as recommended by the Audit Report. The complainant questioned RWl on the procedure when someone is leaving the office. She stated that if the officer was the one handling cash, the procedure would be as recommended by the auditors that they go on suspension and hand over to an officer in the accounts office who was not involved in the case being investigated. However, in this case, there was no one to hand over to, hence the recommendation for the Financial Specialist from Southern Province to be called upon. She added that the financial specialist's report stated that the finance staff was uncooperative when asked to do the handovers. Additionally, she explained that she was the chairperson of the disciplinary committee and that the disciplinary committee merely made a recommendation but the Board made the decision to dismiss the complainant. J7 ISSUES FOR DETERMINATION 22. In determining the issues, I refer to the final WTitten submissions made by the parties for which I am grateful. 23. The following are the issues for determination in this matter: i. Whether the complainant was unfairly dismissed from employment; ii. Whether the complainant was wrongfully dismissed from employment; and iii. Whether the complainant i.s entitled to a payment of his unpaid leave days. ANALYSIS AND DECISION A. Whether the complainant was unfairly dismissed from employment 24. The complainant claimed that he was unfairly and unlawfully dismissed due to the respondent's failure to follow procedure in dismissing him. The complainant referred to the same facts interchangeably to support his claim for unfair and unlav.rful dismissal. Considering that he is a layman and unrepresented, I will consider which facts are appropriate as I review each distinctive claim; however, for the purposes of clarity, r will consider his claims to be unfair dismissal and wrongful dismissal. being the two broad categories for dismissal as stated in Eston Banda and Another v Attorney General.1 25. In his final submissions, the Complainant contended that the dismissal letters did not state the specific grounds or the offence in the disciplinary code that he had breached, neither were they copied to the Labour Commissioner within four days from the date they were written. Additionally, the backdating of his dismissal date to 17 November 2000 th J8 meant that he had no prior notice of the disciplinary action before the effective summary dismissal date and thus was denied an opportunity to respond before 17th November 2000. He also cited the lack of any handover at the point of his suspension as resulting in the financial discrepancies, missing documents and the subsequent allegations of cash shortages. The complainant further claimed that the employer breached the contract of employment by terminating without notice. Finally, the complainant stated that he was unable to appeal the decision because it was made by the Board which was the highest institution at the respondent. 26. In relation to the claim of unfair dismissal, the respondent cited section 26(A} of the Employment Act, Chapter 268 of the Laws of Zambia (the "Employment Act") which provides that: "An employer shall not tenninate the seroi.ce of an employee on grounds related to the conduct or performance of an employee without affording the employee an opportunity to be heard on the charges laid against him." 27. The respondent submitted that the complainant's admissions that he was given reasons for his dismissal and that the charges against him related to his conduct as an employee confirm that the respondent complied with section 26(A) of the Employment Act. Additionally, it was submitted that procedural fairness was held by giving the complainant an opportunity to present his side of the story. Therefore, the respondent argued that the complainant's dismissal was lawful, justified and in accordance with the statutory requirements under section 26(A) of the Employment Act. 28. I have considered the arguments made by both parties on this legal issue. The starting point in determining this matter is to distinguish unfair dismissal from wrongful dismissal. This distinction was put aptly in Eston Banda and Another v Attorney Genera11 as follows: J9 ". .. there are only two broad categories for dismissal by an employer of an employee, it is either wrongful or unfair. "Wrongful' refers to a dismissal in breach of a relevant term embodied in a contract of employment, which relates to the expiration of the term for which the employee is engaged; whilst 'unfair', as stated at paragraph 757 of Halsbury's Laws of England, refers to a dismissal in breach of a statutory provision, where an employee has a statutory right not to be dismissed. n 29. Additionally, the Supreme Court in Supabets Sports Betting v Kalimukwa2 made the following distinction between wrongful and unfair dismissal: •. .. whereas inquiry into whether or not a dismissal was wrongful is restricted to consideration of procedural lapses in effecting the dismissal; unfair dismissal looks at the substance or merits of the dismissal to determine whether it was reasonable or justified. The court is in unfair dismissal, obliged to consider the merits or substance of the dismissal to determine, whether the reason given for the dismissal is supported by the relevant facts. 30. As stated above, unfair dismissal refers to dismissal in breach of statute, and the court is obliged to consider the merits of the dismissal while wrongful dismissal refers to dismissal in breach of contract and considers procedural lapses in effecting the dismissal. In terms of unfair dismissal, the complainant in his written submissions cited the wrong sections of the Employment Code Act, namely sections 36 -40 as referring to unfair labour practice and grounds of tennination being stated. He also cited non existent legislation such as the Labour Act Cap 272. However, he did submit that he was of the view that the grounds for tennination needed to be stated in the dismissal letter in accordance with the Employment Code Act. Despite the wrong statute being cited, I will consider this argument on JlO the understanding that the complainant, who was a layman and unrepresented, erroneously cited section 36 of the Employment Code Act, however, the provision he wished to rely upon would be section 36(3) of the Employment Act as per the Employment (Amendment) Act No. 15 of 2015, which provides that an employer is obligated to give reasons for termination at its instance. Nonetheless, the said amendment did not apply to the complainant as it was enacted in 2015 while he was dismissed in 2001, and the law does not operate retrospectively unless expressly stipulated as such. 31. In terms of section 26(B) of the Employment Act as cited by the respondent at paragraph 29 above, an employer cannot dismiss an employee on grounds related to his conduct or performance without affording the employee an opportunity to be heard on the charges laid against him. It is not in dispute that the complainant was given an opportunity to exculpate himself and thereafter, he attended a hearing. The issue the complainant disputes is that his charge letter and dismissal letter did not contain grounds upon which he was dismissed. 32. I have reviewed both documents and indeed the charge letter did not state the offence(s) in the disciplinary code that the complainant breached nor did the dismissal letter disclose the reason the complainant was dismissed. The respondent has sought to categorise the offences in its written submissions filed before this Court based on the Disciplinary Code of 2003, which did not apply to the complainant who was dismissed in 2001. However, the charge letter did state the specific conduct that the complainant was being sanctioned for as follows: "On four different dates, namely, 18.08.2000, 22.08.2000, 22.09.2000 and 25.10.2000 you drew 40 litres, 20 litres, 20 litres and 30 litres of fuel respectively costing a total of K372, 060. 00. This fuel was drawn by you without authority and without using fuel coupons contrary to Jll procedure laid down in the Financial Procedures Manual for District Health Boards. Between 16"' February 2000 and 1J lh November 2000 you did not aca,unt for Kl4, 015, 724.00 cash which was meant for previous payments. In other words, this money was not acquitted at all. Shortage of cash: on 1 gJi December 2000, there was a cash shortage of K2, 477,850 which you could not explain." 33. The Supreme Court in Zulu and Anor v Barclays Bank ot Zambia3 considered the interpretation of section 26A of the Employment Code Act and Article 7 of the International Labour Organisation Convention No. 158 which states that, "The employment of a worker shall not be terminated for reasons related to the workers conduct or performance before he is provided with an opportunity to defend himself against the allegations made, unless the employer cannot reasonably be expected to provide this opportunity". The Supreme Court stated thus: "The gist of these two provisions is that the conduct or performance of the employee which is questioned must arise or relate to his work and he must be given an opportunity to be heard and this has nothing to do with the Notice Clause that may be in the Contract. Neither do these provisions call for reasons to be given. for terminating employment. In other words, the employee is notified of his questionable conduct related to his work and he is given an opportunity to explain and it is then up to the employer to decide. The provision.s do not set any standard or proof, they merely emphasise on the employee being given an opportunity to defend himself. It follows, therefore, that in the present case, the Court below founded its findings that the failure by the respondent to giue reasons was a mere technicality, hence the terminations were wrongful and illegal and therefore null and void. The lower Courts findings were further strengthened on its misdirection J12 that the above proV1S1ons require reasons for tennination of employment to be given. That is not the law. 0 34. The interpretation above is indeed sound as section 26A of the Employment Act merely requires that an employee is given an opportunity to be heard on the charges levelled against him before an employer can dismiss him on grounds related to his conduct or performance. This section differs from section 36(3) of the Employment (Amendment) Act No. 15 of 2015 (the "Employment Act"), (which is not applicable to the complainant as explained earlier) which prohibits employers from terminating an employment contract unless there is "a valid reason for the termination connected with the capacity, conduct of the employee or based on the operational requirements of the undertaking." Section 26A merely enshrined an employee's right to be heard. The complainant, in cross examination, confirmed that he was accorded an opportunity to be heard and he was fully aware of what he was charged with, and the committee made a finding to dismiss him as a result of the hearing. Therefore, the respondent was not in breach of the law and, as such, r dismiss the complainant's claim for unfair dismissal. B. Whether the complainant was wrongfully dismissed from employment 35. As established earlier on, wrongful dismissal refers to dismissal contrary to a relevant term embodied in a contract of employment and by extension, the procedure contained in the disciplinary code as it forms part of the contract of employment by incorporation. The complainant, in his written submissions, alleged that the respondent charged him for committing offences in the absence of evidence to prove that he did, in fact, commit the said offences. He denied the first offence on the charge letter being the withdrawal of fuel without authority and without using fuel vouchers on four different occasions as his only involvement was to prepare coupons for the J13 drivers and he was not a driver. He added that due to the fact that fuel could not be withdrawn without using fuel coupons, the respondent needed to prove this allegation by an invoice or invoice number from the filling station. He stated that during his hearing, he requested to see the invoices in respect of the withdrawals or a witness from the filling station to testify against him but neither was provided. 36. In respect of the second offence of unaccounted for cash amounting to K14, 015, 724, the complainant submitted that the respondent did not substantiate the source documents from where they gathered this amount. He added that his role in the payment process was to pay the payee after the general voucher had been authorised and to ensure the payee had signed on the received pa:rt. After that, the general voucher and supporting documents were given to another officer to enter in the cash book and file the documents after giving reference numbers to the vouchers. He stated that these documents were in the office and could have been availed for inspection had a proper handover been conducted. 37. In respect of the third charge relating to missing cash on 19th December 2000, the complainant submitted that there was no missing cash at the date of his suspension on 17th November 2000 and he could not be expected to account for cash that went missing when he was on suspension. He stated that during his hearing he requested for the daily cash reconciliation sheet for 171h November 2000 and the handover report of 13th November 2000, being the date he took leave as he had handed over the cash to Mrs R. Shonga before he went on leave, however, none of the said documents was produced. He submitted that he requested to hand over the cash, cheque books, general receipts, safe key and office keys but he was forced out of the office. The hand over report from 13th November 2000 was left in the office as he was commanded to leave all the reports in the office. J14 38. The complainant thus submitted that proper procedures were not followed in the manner in which his matter was handled and failure to allow him to conduct a proper handover before he left the office on suspension led to potential financial discrepancies and disruption of accounting documents and operations. Additionally, the dismissal letter did not make reference to any finding of the disciplinary committee nor state the grounds upon which he was being dismissed. Furthermore, he had no room to appeal to his employer as the dismissal letter was written by the Board Chairman. 39. rn terms of whether the dismissal was wrongful, the respondent cited code 19 of the Disciplinary Code and Procedures for Handling Offences in the Public Service, 2003 (the "Disciplinary Code") as follows; "Punitive suspension may be used where a severe or a final warning alone is inadequate and should not be used in isolation. It is not a step in procedure under the Disciplinary Code but an additional measure that may be applied to reinforce such warnings. n 40. The respondent then submitted that final warning letters to the complainant and another accounting officer were issued on the 10th November 2000 and they were given one week to account for the unauthorised fuel withdrawing failure to which they were to be suspended. Additionally, he cited code 2 l(a)(v) of the Disciplinary Code as follows: "Discharge or summary dismissal is the final sanction and may be given under the following circumstances: (11) when the offence committed is of serious nature that it amounts to a breach or repudiation of contractual obligations such as breach of confidentiality, illegal strike action, misappropriation of funds, theft and fraud;" JlS 41. The respondent proceeded to cite the cases of Zambia National Provident Fund v Yekweniya Mbiniwa Chirwa4 and Kenny Sililo v Mend-a-Bath and Spencon Zambia Lim.ited5 in which the Supreme Court affirmed its position in the former case as follows: "M!ere it is not disputed that an employee has committed an offence for which the appropriate punishment is dismissal, but the employer dismisses him without following procedure prior to the dismissal laid down in a contract of seroice, no injustice is done to the employee by such failure to follow the procedure, and he has no claim on that ground either for wrongful dismissal, or for a declaration that the dismissal was a nullity." 42. The respondent thus argued that the primary consideration when an employee commits a dismissible offence is the severity of the misconduct rather than the procedural details. Therefore, based on the severity of the offences committed by the complainant, his dismissal from the Public Service should be considered lawful. 43. Having earlier established that wrongful dismissal is dismissal that is carried out in contravention to the procedure outlined in the contract, and by extension, the disciplinary code which is incorporated into the contract, the complainant needed to cite the provisions or procedure either in his contract or in the disciplinary code that the respondent allegedly breached. This was not done and neither the contract nor applicable disciplinary code was produced before this court. However, even on the assumption that the procedures in the contract and disciplinary code where strictly followed by the respondent, the Court must go a step further to consider whether the respondent had a justifiable reason for the disciplinary action taken. This position is fortified by the holding of the Supreme Court in Attorney General v Richard Jackson Phiri6 as follows: Jl6 "We agree that once the correct procedures have been followed, the only question which can arise for the consideration of the court, based on the facts of the case, would be whether there were in fact facts established to support the disciplinary measures since it is obvious that any exercise of powers will be regarded as bad if there is no substratum of fact to support the same. Quite clearly, if there is no evidence to sustain charges levelled in disciplinary proceedings, injustice would be visited upon the party concerned if the court could not then review the validity of the exercise of such powers simply because the disciplinary authority went through the proper motions and followed the co1Tect procedures." 44. The case cited above established that even m instances where correct procedures were followed by the employer, it is imperative that the Court considers whether the disciplinary measures taken are supported by a substratum of fact warranting the said disciplinary measures. This is because it is possible for an employer to strictly adhere to the correct procedures as a mere formality before proceeding to unjustly dismiss an employee in the absence of evidence to support the charges levelled against him. 45. In Barclays Bank Zambia PLC v Gondwe,7 the Supreme Court guided courts considering whether there exists a substratum of fact to support an employer's decision to consider the principle enunciated in Chlma.nga Changa Limited v Ng'ombe.8 That case, whose holding was drawn from a passage in Selwyn's Law of Employment, was further examined and applied by the Supreme Court in Konkola Copper Mines PLC v Simwinga,9 where it was discussed in detail as follows: "Clearly, no disciplinary action should be taken in advance of proper investigation by the employer. As Megarry VC stated in John v Rees (see para 12.38) the paths of the law are strewn with J17 examples of unanswerable charges which were eventually answered. But there are certain limits on the extent to which an employer may properly make inquiries into an incident, particularly if the charge is a serious one, such as theft, for there may well be an improper interference with the processes of Justice [Tesco (Holdings) Limited v Hill). The important thing is that the employer does not have to prove that an offence took place, or even satisfy himself beyond all reasonable doubt that the employee committed the act in question. The function of the employer is to act reasonably in coming to a decision. Thus, in Ferodo Ltd v Barines, an employee was dismissed for vandalism. The employment tribunal was not satisfied that the employee was guilty, and therefore held that the dismissal was unfair. This finding was reversed by the EAT. The question was not whether or not the employment tribunal was satisfied that the employee was guilty, but whether they were satisfied that the employer had reasonable grounds for believing that the employee had committed the offence and had acted reasonably in dismissing for that offence. The employer is not concerned to apply standards of proof which may be relevant in a criminal court. In Docherty v Redd, the employee was dismissed for stealing SOp from the till. The employers took into account that they had suspected him of stealing similar sums on previous occasions, and it was held that they were entitled to have regard to their past suspicious. Clearly, a suspicion of preuious theft is hardly evidence which would be admitted in a criminal court, but the issues are different. The employer is having to decide whether or not he wishes to retain the employee, not whether or not he was guilty of a particular offence. Thus. the test is, what would a reasonable employer have done on the facts which he knew taking into account the Code of Practice and current industrial relation practice {Parkers Bakeries J18 Ltd u Palmer/. The employment tribunal must not act as a court of appeal, nor retry a case, and the fact that in subsequent criminal proceedings an employee is acquitted of a charge against him is irreleuant to the issue of whether or not the employer has acted reasonable (Davies v GKN Birwelco {Usksidej Ltd) In Sainsbury's Supermarket Ltd v Hitt, the Court of Appeal confirmed that the band of reasonableness approach applies to the conduct of inuestigations as much as to other procedural and substantive decisions to dismiss a person from his employment for conduct. Thus, provided an employer carries out an appropriate investigation, gives the employee a fair opportunity to explain his conduct, etc, it would be wrong for an employment tribunal to suggest that further investigations should haue been carried out for, by doing so, they are substituting their own standards of what was an adequate investigation for the standard that could be objectively expected from a reasonable employer. (Emphasis n mine) 46. The afore-cited authorities provide clear guidelines on the mandate and limitations of the court when making a determination of whether the decision of a disciplinary committee was properly arrived at. The court is required to make a determination of whether the respondent acted reasonably in dismissing the complainant on the basis of the facts that were before the respondent at the time of making the decision. In making this determination, the court must bear in mind that the respondent did not need to be satisfied that the complainant committed the offence beyond reasonable doubt. Rather, the role of the court is to establish whether the respondent had reasonable grounds for believing that the complainant had committed the offences alleged and whether the respondent acted reasonably in dismissing for those offences. However, care must be taken by the court not to retry the case by substituting its own standards of what an adequate Jl9 investigation should have been for the standard that can be objectively expected from a reasonable employer. 47. The starting point is for me to establish the charges that were levelled against the complainant before his dismissal. For ease of reference, the charges contained in the charge letter are reproduced below as follows: ul. On four different dates, namely, 18.08.2000, 22.08.2000, 22.09.2000 and 25.10.2000 you drew 40 litres, 20 litres, 20 litres and 30 litres off uel respectively costing a total of K372, 060. 00. This fuel was drawn by y(lU without authority and without using fuel coupons contrary to procedure laid down in the Financial Procedures lilanuctl for District Health Boards. 2. Between 16"• February 2000 and 17th November 2000 you did not account for K14, 015, 724.00 cash which was meant Jo,· previous payments. In other words, this money was not acquitted at all. 3. Shortage of cash: on 19'h December 2000, there was a cash slwrtage ofK Z, 477,850 which you could not explain." 48. The complainant responded to the charges stated above in a letter dated 8 th February 2001, marked as exhibit "CL5" in his Notice to Produce. In respect to the first charge, the complainant stated that the offence he was charged with was not clear to him and he did not remember drawing fuel on those dates. He stated that the procedure was clear that no one was allowed to withdraw fuel without a fuel coupon. 49. In response to the second charge, the complainant explained that between 16th February 2000 and 17th November 2000, cash withdrawals were made for various payments, mainly allowances for members of staff. He stated that after payments, the claim sheet was attached to the respective general voucher with supporting documents. However, the audit started on 19th to J20 23rd December 2000 while he was suspended on 17th November 2000 and at the time he left the office, the supporting documents were attached. He added that he was unaware of the amount of Kl 4, 015, 724.00 which had no acquitted documents and this resulted from the lack of an official handover and he stated that the documents were misplaced after he was suspended. 50. Coming to the third offence, the complainant stated that there was no shortage of cash when he was suspended on 17th November 2000. He contended that it was unfair for the auditors to charge him for a shortage of th cash on the 19 December 2000 when he was away on suspension from as far back as l 7U> November 2000. He added that whoever was in custody of th the cash on 19 December 2000 was the right person to explain the shortage of cash as he left his keys at the office with Mrs R. Shonga, the Manager Administration. 51. The complainant, in his final submissions, stated that during the hearing, he demanded for the documented evidence supporting the charges. He requested to see the invoices in respect of the withdrawals of fuel in the first charge or a witness from the filing station to testify against him but neither was provided. He further demanded for the general vouchers that allegedly had no supporting documents which were not availed to him. He stated that he requested for the daily cash reconciliation sheet for 17th November 2000 and the handover report of 13th November 2000 to Mrs. R. Shonga. He also requested for the Financial Specialist's report of 171h November 2000 and the auditors' report and neither was produced. Lastly, he demanded for an expert opinion over the non-availability of documented evidence, however, the request was not taken seriously. 52. The respondent, on the other hand, relied on the Special Audit report of Choma District Health Board, which conducted an audit from 19th to 23rd December 2000 by 4 auditors from Luapula, Western, Southern and Lusaka Province. The audit report stated that the auditors were not able to get the J21 full co-operation of the accounting staff that were already on suspension at the time of the audit. However, the accounting staff claimed to have left every document in the accounts office although no proper handover was done at the time of their suspension. 53. Some key findings in the audit report were that out of 1,400 vouchers recorded during the period under review, only 200 were filed while the remaining 1,200 vouchers were heaped in carton boxes and trays and most of them were not numbered. Hence, the filing system had totally collapsed. 54. In terms of the fuel fraudulently obtained, it was discovered that K9, 550, 917 worth of fuel was drawn from the filing station without authority from management. A schedule was attached showing the vehicle details, date, coupon number, receipt number, quantity of fuel, amount, whom it was collected by and remarks. I took note that all the entries had receipt numbers while many of the coupons were missing. I perused the schedule and observed the entries where the complainant's name was appearing. In one entry, the remarks stated that the coupon was already used on another receipt. Another entry stated that there was no coupon. A different entry showed that the amount was altered and the coupon was already used on a different receipt. In yet another entry, the quantity of fuel was altered from 80 litres to 100 litres by the complainant. The recommendation was to discipline the accounts personnel. 55. The report also considered the forged cheque by the complainant. It was stated that the cheque was meant for a Mrs. A. Kaumba as imprest for a health centre and the amount was supposed to be K240, 300 as indicated on the cheque counterfoil. However, the complainant altered the cheque to K820,000 and forged the signature of the Director and the cheque was eventually cashed by the complainant. The recommendation was for the matter to be reported to the police and punitive action to be taken against the complainant. J22 56. In terms of unaccounted for cash, the report stated that a cash reconciliation was conducted on 19th December 2000 which revealed a cash shortage of K2, 477, 850 and that the complainant could not give an explanation for the shortage. The recommendation was for the complainant to be dismissed. fn terms of unacquitted staff allowances, the report stated that payment vouchers amounting to K28, 599, 386.00 meant for various staff allowances were examined. A total of K9, 663, 562.00 was signed for by payees, leaving behind a balance of Kl8, 895, 824 unaccounted for. A schedule was prepared to this effect and having perused the schedule, the complainant was the payee in most of the transactions. 57. I have also read through the minutes of the extra-ordinary meeting of the Board members who the respondent stated had the final say on whether to dismiss the complainant or not. The Board considered the recommendation by the District Health Management Team to summarily dismiss the complainant after finding him guilty at his case hearing on 12th February 2001. The charges, exculpatory letter and recommendations were presented to the Board members. 58. The Board members requested for clarification on the handover that took place when the complainant was suspended, specifically, if there was any cash handed over. The Financial Specialist infonned the house that there was no cash handed over because the safe was empty, therefore, the complainant's allegations that he handed over the cash were not valid. The Board members analysed the exculpatory letter and thought that the complainant was arrogant and members were told during his hearing that he did not want to reveal much information. 59. Coming to the issue for determination, having considered the facts that were before the disciplinary authority as stated above, would a reasonable employer have dismissed the complainant? In my opinion, the answer to this question is in the affirmative. The respondent actually noticed the J23 discrepancies in the accounts department by virtue of an audit conducted by the District Health Board management in the accounts department which resulted in the complainant being issued with a final written warning on the 10th November 2000. The said written warning letter was exhibited as "CL2" in the complainant's notice to produce. The warning letter made reference to investigations on fuel mismanagement amounting to K3, 324, 569.00 between 1st August to October 2000. The warning letter also cited irregularities in the issuing of fuel coupons and it stated that some duplicate and triplicate copies of the fuel coupons were blank and some coupon numbers were used twice or thrice. The complainant was cited for gross financial mismanagement since the fuel coupons were in his custody. He was thereby issued with a first and final written warning. 60. Thereafter, the Provincial Financial Specialist was called upon to conduct investigations in the accounts department on the allegations of fraudulent practices and his findings revealed gross mismanagement of finances, leading to the suspension of the complainant while awaiting expert investigations by the expert auditors from 4 different provinces. 61. The special audit included schedules which implicated the complainant in the fuel mismanagement and unacquitted allowances. Although the complainant was not a driver, he was in charge of issuing out the coupons which were used by the drivers to draw fuel, therefore, it was his responsibility to account for the missing coupons and duplicate and triplicate copies of the fuel coupons which were blank and the coupon numbers which were used twice or thrice. In tenns of the missing cash, the respondent did not state that the cash went missing on the 1g rn of December, 2000 as alleged by the complainant; rather, it referred to the cash reconciliation conducted on that date which revealed the cash shortage. During the extra-ordinary board meeting, the Financial Specialist advised J24 that the cash was not handed over because the safe was empty invalidating his allegations that the cash was handed over. 62. While it is true that the complainant did not officially handover the documents, the complainant claimed to have left all the documents in the accounts office. Moreover, all three separate investigations conducted by the Director Administration, the Provincial Financial Specialist and the special audit team consistently reported missing coupons, duplicate coupon entries, and other anomalies indicative of gross financial mismanagement. In addition to the above issues, the complainant was reported to the police for forging a cheque. 63. In light of the foregoing, it is quite understandable and indeed reasonable, that the respondent had lost trust in the complainant to handle its finances honestly and diligently, which was the basis of his role as an assistant accounting officer. Therefore, based on the guidance in Konkola Copper Min.es v Slm.winga,9 I find that the respondent conducted the appropriate investigations, gave the complainant a fair opportunity to explain his conduct and acted reasonably in dismissing him. In terms of his claim that he could not appeal to the Board because his dismissal letter was written to a board member, the complainant needed to produce evidence showing the person or body that was designated to handle appeals. In the absence of which, the court is unable to determine whether the Board was the designated appellate body so as to make a detennination on whether the respondent violated its disciplinary code regarding the right to appeal. Consequently, the complainant's claim for wrongful dismissal is dismissed. C. Whether the complainant is entitled to a payment of his unpaid leave days 64. The complainant submitted that his leave days had been miscalculated as the respondent used a wrong formula by using years instead of days. He )25 added that the formula used was 22/22 x monthly salary, however, the correct formula was (FP x D)/26 days, where FP represents his full pay and D represents the accumulated days. He cited the Employment Code Act as the basis for this claim, albeit the wrong provision. He also claimed for the payment of his leave days during the period he was on suspension. 65. The Supreme Court in the case of Jennifer Nawa v Standard Chartered Banll: 10 affirmed the settled principle of law that unless expressly stated, a law does not operate retrospectively. Therefore, the complainant cannot rely on the Employment Code Act which was enacted in 2019 to apply to his employment which came to an end in 200 l. Additionally, the case of Khalid v Attorney General11 affirmed another settled principle of law regarding the party that bears the burden of proof as follows: "An unqualified proposition that a plaintiff should succeed automatically whenever a defence has failed is unacceptable to me. A plaintiff must prove his case and if he fails to do so the mere failure of the opponent's defence does not entitle him to judgment." 66. As stated above, the complainant has the responsibility to prove his case and adduce evidence supporting his claims. The complainant in this case did not state how much he was paid by the respondent in respect of his leave days or provide the basis of his entitlement to the leave or state how many leave days he was entitled to. On this basis, his claim in respect of his leave days is dismissed in its entirety. 67. The complainant also cited the backdating of the effective dismissal date without notice or due process which was done to deprive him of his benefits. However, the complainant did not state how much he was paid in respect of his benefits nor provide any documentation to show what he was entitled to against what he was paid. Similarly, the court cannot consider this claim due to the complainant's failure to provide sufficient information and any J26 documentation to prove it. The complainant's entire action is accordingly dismissed. 68. Each party will bear their own costs. Delivered at Lusaka this 30th day of September, 2025. M.S. Ngoma ~"'SH.>N HIGH COURT JUDGE J27