Kombe Mulenga Nkhoma v National Road Fund Agency (2022/HPIR/134) (13 November 2024) – ZambiaLII

IN THE HIGH COURT FOR ZAMBIA 2022/HPIR/ 134 INDUSTRIAL RELATIONS DIVISION HOLDEN AT LUSAKA (CIVIL JURISDICTION) BETWEEN: KOMBE MULENGA NKHOMA AND NATIONAL ROAD FUND AGENCY CORAM: Hon. E. MWANSA Esq JUDGE APPEARANCES: For the Complainant : Mr. K. Chabwe - Messrs. Legal Aid Board For the Respondent : Mr. F. Imasiku with Ms. N. Dihanga - In House Counsel JUDGMENT Authorities Referred to 1. Tolley's Employment Handbook, 11th edition. 2. Attorney General -V- Richard Jackson Phiri (1988-89). 3. Pamodzi Hotel -V- Godwin Mbewe (19870 ZR 56. 4. Mwenda W.S. Employment Law in Zambia, Cases and Materials 2004. 5. Wilson Masauso Zulu -V- Avondale Housing Project Limtied (182) ZR 172. Jl 1.0 INTRODUCTION 1.1. On 23rd September, 2022, the Complainant issued out of this Court an amended notice of complaint after leave to amend same was granted. 1. 2. She now seeks the following relief: 1.2.1. A declaration that the Respondent unfairly and wrongfully dismissed the Complainant on a charge of defrauding or attempting to defraud the Agency- Respondent; 1.2.2. Damages for wrongful/ and unfair dismissal; 1.2.3. Damages for mental anguish; 1.2.4. Interest on the sums found due; 1.2.5. Any other relief the Court may deem fit; 1.2.6. Costs. 2.0 COMPLAINANT'S CASE 2. 1. The Complainant's sworn testimony in the matter is basically that. She was employed by the Respondent as Manager - Procurement on a five year fixed term contract from 1st June, 2021. J2 2.2. That on 11th June, 2021, she was nominated by the Respondent to attend the Zambia Institute of Purchasing and Supply National Conference as well as the Annual Meeting (ZIPS Conference) scheduled to be held in Livingstone from 29th June, 2021 to 2nd July, 2021. This ZIPS Conference was later rescheduled to 5th October, to the 8th October, 2021. 2.3. The letter of nomination went further to state that the cost of participation was to be met by the Respondent. 2.4. So it was that on 21st September, 2021 the Complainant requested for permission to travel to the said ZIPS Conference a day earlier - on 3rd October, 2021, as she was part of the organizing committee. The request was granted. 2.5. Complainant stated that on 1st October, 2021, her Stanbic Bank Account received credit of Kl 1,475.46 from the World Bank - Improved Rural Connectivity Project (IRCP) which was meant to facilitate her travel to the Conference. J3 2.6. According to the Complainant, K6,4 75.46 of the Kl 1,475.46 was imprest for two other motor vehicles' fuel the other participants were to use, on the 4th October, 2021. While the K5,000.00 was her imprest. 2.7. Since she had authority to travel on the October, 3rct 2021, she travelled using her official motor vehicle. 2.8. She testified that, while in Livingstone, on the 4th October, 2021, she was again credited with K3,550.00 for fuel, by the Respondent. 2.9. It was her further testimony that she later learnt, on 6th October, 2021 that the cost of her travel should have been borne by the World Bank (IRCP) as it had stated so. 2.10. She was also advised by the Respondent that a further payment of K2,750.00 payable to Victoria Apartment for accommodation and K2,500.00 retireable imprest for meals while at the Conference and applied for on her behalf by Ms Suzyo Chirwa, Acting Manager Procurement, had been stopped. 2.11. She was also informed that she was not supposed to J4 draw the K3,550.00 for fuel as that had already been taken care of by the IRCP. 2.12. On this basis, the disciplinary action was instituted against her. She was asked to show cause why Disciplinary Action should not be taken against her on allegation that she instructed her subordinate to apply for the K7,950.00 meant for accommodation at Victoria Apartments as well as the K2,500.00 for meals when infact the World Bank (IRCP) had provided for that. 2.13. Following this, the Complainant paid back the K3,550.OO imprest on 1st November, 2021. She was suspended from duty and placed on half salary. She was then charged with two counts of the offence of defrauding or attempting to defraud the Respondent under clause 6.45 of the Respondents Disciplinary Code of Conduct and Grievance Procedure (the code) for which she was subsequently dismissed. 3.0 RESPONDENT'S CASE 3.1. The Respondent called three (03) witnesses to aid its case. RWl was Suzyo Chirwa, RW2 Mr. Constantine Hara, while Bobert Lupiya was RW3. 3. 2. RW 1 Suzyo Chirwa is allegedly the one who was J5 instructed by the Complainant to apply for imprest for her as the lodge was not providing meals. She asked for K2,500.00. The witness consulted with RW2 - Director Corporate Services upon which she then made the request on her behalf. 3.3. RW2 was Major Hara. This is the witness who approved the Complainants request to travel for the ZIPS Conference as well as the use of motor vehicles. He was the Director Corporate Services for the Respondent. 3.4. According to RW2, the Complainant received in her account Kl 1,475.46 plus for fuel for two vehicles that were to be used to travel for the ZIPS Conference. 3.5. The witness testified that on KMN2, the Complainants cost of attending the meeting was to be met by the Agency. 3.6. He testified further that the Complainant's money for ZIPS Conference was infa ct paid to her on 1st October, 2021 by World Bank (IRCP). 3.7. It was his testimony that a letter marked CHI was from IRCP and marked in ink by this witness for the attention of 'MP' the title for the Complainant. As such she should J6 have been aware that her trip to ZIPS Conference Livingstone was to be sponsored by them (IRCP). 3.8. To that effect K46,475.46 was paid to the Complainant on CHS. But then again, the Complainant is said to have phoned this witness that she need accommodation, so Suzyo was instructed to apply on her behalf, as at CH9. CH 10 was also raised on her behalf. 3.9. It turned out that the risk office sent back the CH9 - the application for lodging expense to this witness because IRCP had taken care of that. The witness testified that he had forgotten about the CH2 which letter talked about the sponsorship by IRCP. So he had, in good faith approved CH9. 3.10. According to this witness (RW2), when that came to his attention, he asked the Complainant if she had received money from IRCP, she denied. But that when he went back to Risk Office, they produced the proof of payment to her. At that point, the witness phoned the Complainant and alerted her of the proof of payment. She then admitted having received the same from IRCP. J7 3.11. The other witness for the Respondent was Bobert Lupiya. The witness stated that he was aware of the travel advance application on CH8 which was signed on his behalf by Suzyo Chirwa. On CH8 were Joseph, this witness and the Complainant, as beneficiaries of the fund. 3.12. The Complainant was taken care of for fuel. And she phoned this witness to transfer her fuel money of K3,550.00 which this witness did via e-wallet. 3.13. But that when this witness asked Complainant to sign for the money she got, in form of retirement, she refused to do so. The fuel was not retireable, only the KS00.00 in the K3,550.00 was to be retired. She indicated that she would pay back the money to the Respondent. 4.0 FACTS ESTABLISHED 4.1. I find as a fact that the Complainant together with others were nominated to attend the ZIPS Conference 1n Livingstone from 29th June, to 2nd July, 2021. 4. 2. It is a fact that in the letter that nominated the Complainant to attend the said Conference, the Respondent advised that the cost of participation was to be met by the Respondent. J8 4.3. I find as a fact that, the ZIPS Conference was rescheduled to sometime in October, 2021. 4.4. It is a fact that the Complainant requested to travel one day earlier as she was in the organising committee of the ZIPS Conference. It was granted. 4.5. It is a fact that on 1st October, 2021, the Complainant's Stanbic Bank Account was credited with Kl 1,475.46 retire able funds from World Bank (IRCP) for her travel to the said conference with her colleagues in two motor vehicles. 4.6. It is a settled fact that there was a KS,000.00 meant for her as per diem for her stay in Livingstone. 4.7. It is a fact that whilst in Livingstone, the Complainant was again paid K3,550.00 for fuel by the Respondent for the same cause as in 4. 5. 4.8. Later on 6th October, 2021, the Complainant was communicated to that the imprest of K7,950.00 payable to Victoria Apartment for her accommodation, as well as the K2,500.00 imprest for her meals whilst 1n J9 Livingstone, applied for by Suzyo Chirwa had been stopped, because she was not entitled to these. 4.9. I find as a fact that Complainant had agreed that out of the Kll,475.460 credited to her Account at least KS,000.00 was her imprest. She then asked Suzyo to apply for K2, 7 50. 00 for accommodation payable to Victoria Apartments (This was stopped). 4.10. It is a fact that even K2,500.00 for meals was also stopped as all accommodation meals, and fuel had been taken care of by IRCP. 4.11. It is a fact that Complainant, phoned Suzyo to apply for funds K2, 7 50. 00 for accommodation at Victoria Apartments and another K2,500.00, retireable imprest for food, since the Apartment was not providing food. For how else could Suzyo know so much detail about Complainants' lodging if not for info from Complainant herself! 4.12. It is a fact that the Complainant paid back the K3,550.00. 4.13. When all this was happening, Complainant had received JlO K46,4 75.46 (CHS) from IRCP, meant to take care of all the conference expenditure. 4.14. I find as a fact that earlier the Complainant was asked to show cause why disciplinary action could not be taken against her. 4.15. I find as a fact that the Complainant was charged with two counts and passed through a disciplinary hearing after which she was dismissed. 5.0 ISSUES TO BE RESOLVED 5.1. In the circumstances of this case, could it be said that there was wrongful dismissal entitling one to damages? 5.2. Is there evidence for mental anguish suffered to entitle the Complainant to recover damages? 6.0 COURT'S POSITION 6.1. Wrongful/and Unfair Dismissal 6.1.1. "If an employer dismisses an employee and, in so doing, the employer acts in breach of his contractual obligations or of his statutory obligations to give him notice, he becomes liable to pay that Jll employee damages for wrongful dismissal".1 6.1.2. In Superbets Sport Betting -V- Batuke Kalimukwa (2019) ZMSC, 27. It was held that wrongful dismissal is a dismissal in breach of contractual terms, such as non compliance with the disciplinary procedure. 6.1.3. In the present case, I have not seen any, or have I been alerted to any issues that point to breach in the composition of the disciplinary committee constituted to hear the case in casu. So I take it that there was no problem with that. 6.1.4. The same goes to whether the disciplinary power was exercised properly. I have not heard anything negative about how the disciplinary power was exercised. 6.1.5. The Complainant, by her Counsel have laboured to explain the factual issues before this Court, as meaning to show where the wrongfulness or unfairness of the dismissal 1 Page 574 Tolley's Employment Handbook, 11th Edition J12 was. In doing so, Counsel has not even defined, 1n submissions, what wrongful dismissal or unfair dismissal is. They have rather glossed over these, which, according to me are the issues to submit on. 6.1.6. Now, this is not helpful to the Complainant in that there were disciplinary proceedings in the case that led to the dismissal. Almost everything that has been put in submission should have been placed before the disciplinary committee. 6.1.7. It is not the function of (this) Court to interpose itself as an appellate tribunal within the Domestic Disciplinary Procedures to review what others have done. The duty of this Court is to examine if there was the necessary power and if it has exercised that power properly.2 6.1.8. We have now been settled that Disciplinary Hearings should not be cramped with legal requirements which impose impossible burdens on the way they conduct affairs. The employer is not obliged to hold a full scale Attorney General -V-Richard Jackson Phiri (1988-89) Jl3 trial, but mu st act reasonably in coming to its decision. (Emphasis provided). 6.1.9. Lord Denning, in the case of Ward - V Bradford Corporation (1971) 70 LGR 27. Put this aptly when he guided that: "We must not force disciplinary bodies to become entrammelled in nets of legal procedure. So long as they act fairly and justly, their decision must be supported" 6.1.10. I have noted with approval that there was proper procedure in the way the Disciplinary Process was conducted. Because of that and what I have said earlier, I do not see any wrongful dismissal. 6.1.11. Further, I have also not been alerted to any evidence signifying malice. On the whole, I am satisfied that on the evidence before me, any reasonable person could form such an opinion. 3 The relief under wrongful dismissal should thus fail as it now does. Pamodzi Hotel -V-Godwin Mbewe (1987) ZR 56. Jl4 6. 2. Unfair Dismissal 6.2.1. This is dismissal which looks at merits or substance of the dismissal. The form (of dismissal) 1s only supportive of the whole merits of the dismissal. Under unfair dismissal, the Courts will look at the reasons for the dismissal for the purpose of determining whether the dismissal was justified or not. 4 6.2.2. Or, it is a dismissal in breach of a statutory protected right. I have not been alerted to any statutory provision that has been breached in this case. 6.2.3. Further it is not in dispute that the Complainant obtained an allowance she was not entitled to (K3,550.00) which she later paid back. It is a fact that other payments were also stopped by the Respondent. 6.2.4. These stopped payments, as well as that which the Complainant paid back were already taken care of by IRCP - World Bank, which means that the Complainant was indeed attempting Employment Law in Zambia, cases and material 2004. JlS to get money from two sources but for the same function - to attend the conference. 6.2.5. 6.2.6. I opine very strongly that the Respondent had a good reason to pass the Complainant though a disciplinary process, and the subject dismissal was justified. For these reasons, I see no unfair dismissal. The claim under this head, fails. 6. 3. Since the claims for wrongful and unfair dismissal have failed, no damages can be due. 6.4. Mental Anguish 6.4.1. There is no evidence tendered to support the assertion that the Complainant suffered any mental anguish deserving of an award of damages. 6.4.2. Put straight, any time a person loses a job, there is some form of mental distress, or mental anguish or by whatever term called, that sets in. 6.4.3. There are authorities and it is now acceptable J16 that damages are recoverable on mental distress or anguish suffered on loss of employment. But there must be proof of such suffering. There is before me, absence of any form of evidence to prove the suffering of mental distress, or anguish. 6.4.4. It is thus safe to state that the Complainant is an author of her own predicament. This relief is also denied. 7.0 CONCLUSION 7 .1. This suit fails in toto. I make no Order as to costs. Dated this ......... day of ........................ , 2024. JJill'" ...-- ~-.... £>\!'- .- v-~·£>\1- ' .. . . . . . . .. . . . . . .. .. .. . . . . / ~"I:?' ) YI E. MWAN ~~ .·· / HIGH COURT .j Jl7