Nchimunya Nyirenda v Construction Industrial and Maintenance Services Limited (2024/HN/IR/61) (15 July 2025) – ZambiaLII

IN THE HIGH COURT FOR ZAMBIA 2024/HN/IR/61 AT THE DISTRICT REGISTRY HOLDEN AT NDOLA BETWEEN: NCHIMUNYA NYIREN . . COMPLAINANT ~,.,, ... '. AND CONSTRUCTION INDUSTRIAL AND MAINTENANCE SERVICES LIMITED RESPONDENT Before the Honourable Mr. Justice D. Mulenga in Chambers on the 15th day of July, 2025. For the Complainant: In Person For the Respondent: Mr. E.S. Lilanda, Mr. B. Milunga of Messrs Mulenga Mundashi Legal Practioners JUDGMENT Cases referred to: 1. Wilson Masauso Zulu v Avondale Housing Project (1982) Z.R. 172 2. Zesco V David Lubasi Muyambango (2002) Z.R.22 3. National Breweries Limited v Philip Mwenya, SCZ Judgment No. 28 of 2002 4. Charles Mwila v Shift Contractors and General Dealers, Comp/IRD/107 /2017. 5. ZCF Finance Services Limited v Happy Edubert ·Phiri, Appeal No. 93 of 2001. 6. Care International Zambia Limited v Misheck Tembo, Selected Judgment no. 56 of 2018 . . Legislation referred to: 1. The Employment Code Act No.3 of 2019. J1 1.0. INTRODUCTION 1. 1. The complainant presented his notice of complaint and affidavit in support of the same, on 4th September, 2024. The grounds of the Complaint is that he was employed as Branch Accountant but his employment was terminated on flimsy and unsubstantiated grounds. The complainant, therefore, seeks an order for payment of damages for unlawful dismissal, interest and costs. 1.2. In opposing the Complaint, the Respondent filed an Answer and the affidavit in support of the same on 30th October, 2024. 2.0. THE COMPLAINANT'S CASE 2 .1. The Complainant deposed that he was employed by the Respondent on 26th January, 2024, as Branch Accountant and he was stationed at Kitwe. He referred to the letter of appointment/contract of employment, exhibit "NNI". J2 2.2. According to the Complainant after working for (4) months, he requested the Respondent for confirmation as probation period had expired after three months as per contract and that there was no complaint against him with regard to his performance. However, the Complainant's request for confirmation angered his immediate supervisor whose mood changed, and a week later on 30th May, 2024 the complainant's probation was extended for three months. The complainant averred that he declined to sign for the said extension because there was no complaint with regard to his work performance. (ref. to 'NN2'). 2.3. The Complainant deposed that after his refusal to sign for the extension of his probation, the Respondent through his immediate supervisor sent him an email inviting him to a poor performance review on 3rd June, 2024. Nonetheless, the review aforesaid was not conducted because the complainant fell sick. That instead of rescheduling the review, the Respondent on 21st June, 2024 served the Complainant, with a letter of suspension on allegations of serious misconduct. (ref to "NN4"). J3 2.4. The complainant's suspension was followed up with a disciplinary case hearing and subsequent dismissal from employment on 23rd July, 2024. The complainant contends that the decision to dismiss him from employment did not comply with the disciplinary matrix of the Respondent. He had never been issued with any written or verbal warning. 2.5. It is the complainant's argument that the alleged serious misconduct is not a dismissible offence as per disciplinary matrix and human resources policies and procedure, without first having been warned verbally, in writing and counselling. 2.6. Nyimunya Nyirenda, the Complainant herein, was the only witness for his case. The gist of the complainant's oral testimony in addition to the affidavit evidence is that prior to being retained by the Respondent he had been interviewed by the employment Agency on behalf of the Respondent. He also did online and physical interviews with the Respondent. J4 2. 7. The Complainant averred that he worked very well with the Respondent in the first month of his being employed. However, when he fell ill and was placed on sick off by the hospital, upon informing his immediate supervisor Mr. Smith and Mr. PanjiKaira, the Human Resources Manager, the Complainant during the week received a phone call from the employment Agent to the effect that he had been dismissed from employment, and was asked to handover the company laptop. He was not availed the reasons for his dismissal. 2.8. According to the Complainant when he approached his immediate supervisor and the Human Resources Manager, they confirmed that he had been dismissed. He, therefore, handed over the laptop and left. The following week, PanjiKaira, the Human Resources Manager called the Complainant and asked him to return to work as the dismissal was unwarranted. The Complainant returned to work and performed well for four months. 2.9. In the fourth month of being in employment on probation, the Complainant on 22nd May, 2024 JS sent an email to his immediate supervisor, copied to the Head Human Resources and the Human Resources Manager, requesting for his confirmation as the probationary period had expired a month ago. The Complainant averred that he needed a confirmation in his employment so that he could shift from Ndola to Kitwe and stop commuting for work. 2.10. The Complainant testified that after the aforesaid email, he observed that his immediate Supervisor's mood and behavior changed. He created a distance from the Complainant. The email remained unanswered, nonetheless, on 30th May, 2024 the complainant was handed a letter "MM2" for extension of probation for three months to 31st August, 2024. The Complainant on receipt of the letter for the extension of probation expressed shock as he had no complaint from the Respondent about his performance. He raised the issue with his immediate supervisor that he had no formal review of his performance in the four months worked. J6 2.11. Sometime in June, 2024 there was an attempt to conduct the complainant's poor performance review. However, the same did not materialize because the complainant was unwell and was on sick off. When the Complainant returned to work, he had a discussion with his immediate supervisor Mr. Smith to iron out their working relationship. The complainant averred that after the said meeting, the working relationship appeared to normalize. However, a week later, the Human Resources Manager handed him a latter of suspension "NN4". 2.12. According to the Complainant, the letter of suspension came to him with a sense of shock having had· a happy spirited meeting with his immediate supervisor just a week before. He contended that the Respondent did not have any discussion with him or given him an opportunity to exculpate himself prior to issuing the suspension and the charge. 2.13. He was later served with the notice of disciplinary case hearing. The charge was also availed to him. He lamented that the charges J7 were harsh as there was no prior counselling, verbal or written warning. 2 .14. Disciplinary case hearing was held and chaired by a Mr. TundoChibeleka a partner of a certain person Mr. Khumalo. The complainant contended that the chairing of the disciplinary case hearing by a senior lawyer Mr. Chibeleka an outsider was contrary to the Respondent's disciplinary guidelines and policy. On 23rd July, 2024 he was served with a dismissal letter - "NN S(c) (i)". 2 .15. In cross-examination by learned counsel for the Respondent, the Complainant confirmed that he is seeking damages for unlawful dismissal from employment. In reference to exhibit "NNl" and clause 13 therein, he confirmed that either party could terminate the contract of employment. He also admitted that the employment agent was not a party to the contract of employment between him and the Respondent. 2.16. In reference to page 7 to 23 of the Respondent's Bundle of Documents, the Complainant admitted having on a number of times being advised by his immediate supervisor ].R. Smith to submit JS requisite information (data) in time and to adhere to time lines. 2.17. When referred to "NNS(a)(2)" the sample of offences and charges, (clause 1.5.4.), the complainant stated that "Gross Insubordination" is defined as a serious act of refusing to comply with reasonable and lawful instructions. That the said offence is dismissible and the clause does not make provision for counselling and or verbal warning. 2.18. The complainant admitted having had received various instructions from his immediate supervisor and that he did not provide any responses neither did he carry out the said instructions. 2 .19. In respect to exhibit "MMBK8" the complainant admitted that the same is the disciplinary proceedings he attended and participated into. The same were chaired by Mr. TundoChibeleka. He confirmed that charges were read to him at the disciplinary case hearing and he was made to plead to the same. He was heard at the disciplinary hearing. J9 2.20. As regards the issue of the chairperson of the disciplinary case hearing being an outsider, the complainant on being referred to exhibit "MMBK 6" averred that in the context of the chairperson being an independent person, it is recommendable that the Respondent made use of him, and it is permissible to have deviated from the Respondent's disciplinary matrix. 3.0. THE RESPONDENT'S CASE 3.1. The Respondent further to its affidavit evidence in answer to the complainant called one witness Mbuyiselwa Moses Bafana Khumalo, Head Human Resources for the Respondent in Africa. He entirely relied on the affidavit in support of the Answer filed into Court on 30th October, 2024. 3.2. The Respondent deposed that on 1st February, 2024, the complainant was offered employment as Branch Accountant; Zambia for SGB-Cape, a wholly owned subsidiary of the WACO Africa (Pty) Limited, as per exhibit "MMBKI". In terms J10 of the contract, the complainant was appointed for a probation period of three (3) months. 3.3. According to the Respondent, during the probation period it was to monitor the Complainant's performance, attendance, adherence to and maintenance of work performance standards, evaluation of key performance areas, his ability to handle stress and job pressures, ability to get along with fellow employees and generally fit into the Respondent's corporate culture, among others. 3.4. That at the end of the initial three(3) months' probation, the complainant was handed over documents to undergo performance review, but he refused to acknowledge receipt of the same, (ref to "MMBK2"). For the said reason the Respondent decided to extend the complainant's probation period for further three (3) months to 31st August, 2024. The extension of probation period was communicated to the complainant vide the letter dated 30th May, 2024, otherwise exhibit "MMBK 3". Jll 3. 5. The Respondent averred that in its letter of extension of probation period to the complainant, it notified the complainant of the work tasks that needed further improvement and included among other things, improvement in weekly progress/activity reports. 3.6. The Respondent averred that during the subsequent probation period, grave allegations of misconduct were raised against the complainant, therefore, he was suspended from work through the suspension letter dated 21st June, 2024 (MMBK 4"). Later the complainant was issued with a notice to attend disciplinary case hearing and was formally charged with gross insubordination, undermining the authority of his Manager and dereliction of duty culminating . into misconduct contrary to the Respondent's Disciplinary matrix - "MMBK6". 3.7. According to the Respondent, the complainant was charged as he consistently ignored emails from his immediate Manager, failed to follow instructions from superiors and consistently missed deadlines for early bird and provisional revenue submissions. He often submitted J12 without the Manager's approval despite constant reminders. 3.8. The complainant was heard on 12th July, 2024 by a disciplinary hearing chaired by the Respondent's external legal personnel and he was dismissed from employment. The Respondent contends that the complainant's dismissal was procedurally and substantively fair and was in accordance with its Disciplinary Matrix as the charge of gross insubordination attracts the penalty of dismissal. 3.9. The Respondent deposed that its schedule of offences and proposed action in the disciplinary matrix, merely serve as a guide and do not constitute inflexible rules that have to be followed to the letter and the same does not obligate the Respondent to issue verbal or written warning in order to validate the dismissal of an employee as alleged by the Complainant. Deviation from the disciplinary code is permitted where mitigating and or aggravating circumstances warrant, therefore, the Respondent was justified to dismiss the complainant. J13 3.10. In cross-examination by the Complainant, Mr. Khumalo agreed with the Complainant that threatening an employee who is on certified sick leave may amount to unlawful dismissal of employment. On reference to pages 1 to 3 of the complainant's Notice to Produce documents, Mr. Khumalo averred that the documents appear to be a medical report, admission to sick leave and a lab test report. Further, that he was aware that the Complainant was sick at the time and had submitted the said documents to the Respondent management. 3.11. The Respondent's witness confirmed that the Complainant's contract of employment expressly stated that probation period was three (3) months and in the fourth month of working the Complainant wrote to the Respondent requesting to be confirmed. However, the Respondent extended the probation period by letter dated 30th May, 2024. 3 .12. Mr. Khumalo testified that prior to extension of the probation period, the Respondent did not conduct a formal performance review of the J14 Complainant. He confirmed that whilst the Complainant was on sick leave the Respondent sent a note to him for a poor performance meeting. The witness averred that the purpose of extending probation period is to give an employee time to improve and he believed that the complainant was disciplined without being availed time to improve. 3 .13. The witness maintained that it is not right to invite an employee to a disciplinary meeting during his sick leave and it was for the said reason that the Complainant's meeting was rescheduled. Further, that he did not see anything wrong in inviting the Complainant to the Poor Performance meeting four days after extension of probation. He denied having been on fault finding mission against the Complainant. 3.14. In reference to exhibit "NN4", the witness confirmed that the Complainant was suspended from work on 3rd June, 2024 and prior to that he was not presented with charges. Further, that there was no need for the Complainant to exculpate himself before the suspension. Nonetheless, suspending the complainant before JlS he was charged with disciplinary offences did not violate the Respondent's disciplinary procedure. 3.15. Respondent's witness confirmed that the disciplinary hearing of the Complainant was chaired by an outside person who is not a member of the Respondent Company. Further, that the Respondent's disciplinary procedure code does not have provision for external personnel to preside over the Respondent's disciplinary cases. 3.16. In re-examination, the Respondent witness explained that the matter involved two Senior Managers, that is the Complainant and his immediate supervisor, therefore, the Respondent had to appoint a neutral person to preside over the Complainant's disciplinary case hearing. 4.0. PARTIES'SUBMISSIONS 4.1. At the close of hearing of the parties' oral evidence, parties were given up to 29th May, 2025 to file submissions. At the time of writing this judgment only the Respondent had filed written submissions, on 29th May, 2025. I shall refer to J16 the said submissions in the analysis herein as and when necessary. 5.0. ANALYSIS AND DECISION 5 .1. Considering the affidavit, documentary and oral evidence, it is a fact that the Complainant was employed on probationary period by the Respondent on 1st February, 2024 as Branch Accountant and was stationed at Kitwe. 5.2. It is not in dispute that the Complainant's terms and conditions of probationary employment were as provided for in the letter of appointment dated 26th January, 2024. The probationary period was extended for three (3) months by letter dated 30th May, 2024. ("NN2"). 5.3. It .is a fact that on 26th June, 2024 the Complainant was suspended from work by the Respondent and was subsequently formally charged and notified of the disciplinary hearing. The complainant attended the disciplinary hearing and was dismissed from employment with effect from 23rd July, 2024. J17 5.4. The issue for determination herein is whether the Complainant's dismissal from employment was unlawful. 5.5. I must state at the outset that as regards the burden of proof, the Supreme Court has guided in many cases, one of which is Wilson Masauso Zulu v Avondale Housing Project1 where it was held , that: "Where a plaintiff alleges that he has been wrongly or unfairly dismissed as indeed in any other case where he makes an legation, it is for him to prove those allegation-:' A plaintiff who has failed to prove his case cannot be entitled to a judgment whatever may be said of the opponent's case." 5.6. In making a determination herein, the Supreme Court has guided with emphasis in respect to the role of the Court, in the case of Zesco v David Lubasi Muyambango2 that: , "As we have said in the case of Attorney General v Phiri, it is not the function of the Court to interpose itself as an appellate tribunal within the domestic disciplinary procedures to review what others have done. The duty of the Court is to examine if there was the necessary disciplinary power, and if it was exercised in due form." 5.7. The Complainant's contention is that the Respondent's decision to dismiss him did not comply with the disciplinary matrix because he J18 had never been issued with any prior warning, be it verbal or written. Further, that the alleged serious misconduct were not dismissible offences as per disciplinary matrix and human resources policies and procedures, without first having been warned verbally, in writing and counselling. 5.8. On the other hand the Respondent vide its learned Counsel submitted that the matter herein can be decided on the principle established by the Supreme Court,in the case of National Breweries Limited v Philip Mwenya3 where it was held that: , "Where an employee has committed an offence for which he can be dismissed, no injustice arises for failure to comply with the procedure stipulated in the contract and such an employee has no claim on that ground for wrongful dismissal or a declaration that the dismissal is a nullity." 5.9. The Respondent submitted that the complainant was . charged with gross insubordination ("MMBKS"), and that throughout his testimony at trial, the Complainant did not dispute the allegation of consistently ignoring emails from his supervisor, not providing worksheet hours. Further, that the offence of insubordination is dismissible under clause 1.5.4. of the Respondent's Disciplinary matrix. J19 5.10. In reference to the case of Charles Mwila v Shift Contractors and General Dealers4, where this Court in relation to unlawful dismissal from employment held that a dismissal is unlawful if the employer has breached a statutory provision such as a provision in the employment Act when dismissing the employee. The Respondent submitted that the Complainant did not at trial show any law or statute that was allegedly breached by the Respondent when dismissing him. 5 .11. Further, the Respondent submitted that in the circumstances it was actually entitled to dismiss the complainant under section 50( 1) of the Employment Code Act No. 3 of 2019. That the Supreme Court in the case of ZCF Finance Services Limited v Happy Edubert Phiri5, held that instant dismissal is appropriate where the employee has committed a fundamental breach of his contract or his conduct is a serious offence that undermines his mutual duty of trust and respect to the employer. J20 5.12. As regards the Complainant's contention that the use of a legal practitioner during the disciplinary hearing is a deviation from the Respondent's disciplinary matrix,the Respondent submitted that the Complainant having brought the Complaint and seeking relief for unlawful dismissal, he cannot be allowed to argue outside the four corners of the said claim or Complaint. In any case, the Respondent's disciplinary matrix does allow deviation from strict application of the disciplinary procedures in permitting circumstances (ref page 1 of "MMBKS"). 5.13. I must agree with the Respondent that the main basis of the complainant's claim before this Court is that he was unlawfully dismissed from employment by the Respondent. The Supreme Court guided in the case of Care International Zambia Limited v Misheck Tembo6 that in , theory and practice of employment, Labour and Industrial Law, terms of expression such as "dismissal"", "employment termination", "unlawful dismissal", "wrongful dismissal", "Unfair dismissal" and "Unlawful termination" of employment mean and connote different things, J21 even though they all relate to the cessation of the employer and employee relationship. 5.14. The difference in the modes of exit from employment is important for purposes of making a determination whether the complainant was wrongfully or unlawfully dismissed from employment. I opine that unlawful dismissal is one that is contrary to the provisions of the statute, or where the employer has breached a statutory provision. 5.15. In casu, the complainant has not led any evidence to establish and prove that the Respondent breached any statutory provisions of the law in dismissing him from employment. In the afore cited case of Care International Zambia Limited v Misheck Tembo, the Supreme Court held among other things that a dismissal maybe lawful, in the sense that it is neither unfair or wrongful. I have observed that the complainant's probationary period was extended for three (3) months and within the said period he was suspended from work and subsequently charged with disciplinary offences. However, to delve into the issue of whether the dismissal was J22 • wrongful is an irrelevant consideration as the same was not pleaded by the Complainant. 5.16. Having considered the facts and the evidence adduced by both parties I find and hold that the Complainant has failed to prove on the balance of probabilities that he was unlawfully dismissed from employment by the Respondent. The Complainant's complaint is accordingly dismissed for lack of merit. 5 .17. Each party shall bear their own costs. Informed Right of the Right of appeal to the Court of Appeal within thirty (30) days from date hereof. Delivered in Chambers at Ndola this 15th day of July, 2025. Hon. Justi e D. Mulenga HIGH C URT JUDGE J23