Starfrance Zulu v Zambia Daily Mail Limited (COMP/2024/HN/IR/21) (15 November 2024) – ZambiaLII

IN THE HIGH COURT FORZAMBIA COMP/2024/HN/IR/21 INDUSTRIAL/LABOUR DIVISION HOLDEN AT NDOLA BETWEEN: STAFRANCE ZULU COMPLAINANT AND ZAMBIA DAILY MAIL LIMITED RESPONDENT Before: The Honourable Mr. Justice D.Mulenga this 15th day of November, 2024. For the Complainant Mr. D. S.Libati of Messrs D.S.Libati Legal Practitioners For the Respondent Mr. B. Lusungo of Messrs Steven Osborne Advocates JUDGMENT Cases referred to: 1. Wilson Masauso Zulu v Avondale Housing Project Limited (1982) ZR 172. 2. Zesco v David Lubasi Muyambango (2006) Z.R 22. 3. Attorney General v Richard Jackson Phiri (1988 - 1989) Z.R. 121. 4. Eston Banda and Another v Attorney General SCZ Appeal No. 42 of 2016 5. Sitali v Central Board of Health SCZ Appeal No. 178 of 1999. J1 6. Moses Choonga v ZESCO Recreation Club, ltezhi-tezhi SCZ Appeal No. 168 of 2013 7. Dennis Chansa v Barclays Bank Zambia Limited.Pie SCZ Appeal No. 111 of 2011. 8. Printing and Numerical Registering Company v Simpson (1875) LR19 EQ462 9. Richard Musenyesa v Indo Bank Zambia Limited Appeal No. 214 of 2016 10._Zubao Harry Juma v First Quantum Mining and Operations-Road Division CAZ Appeal No 102 of 2022 1.0 INTRODUCTION 1.1 The Complainant presented his Notice of Complaint and Affidavit in Support of the same on 5th March, 2024 on grounds that he was wrongfully and unfairly dismissed from employment as the charge levelled against him was not clear and did not match the alleged wrong act. 1.2 The Complainant therefore seeks the following relief: (a)A declaration that he was wrongfully dismissed by the Respondent. (b)A declaration that he was unfairly dismissed by the Respondent. (c) A declaration that the dismissal has caused him emotional stress. (d)A declaration that as at 31st December, 2018 he had accumulated a defined contribution benefit amounting to ZMW241,871,70 which was never paid to Madison Pension Scheme. (e) Damages for wrongful dismissal. (f) Damages for unfair dismissal. (g) Damages for emotional stress. (h)Severance pay from the date of employment to the date of dismissal. (i) An order directing the Respondent to pay him the defined contribution benefit of ZMW24 l ,871. 70 that he had accumulated as at 31st December, 2018 with accumulated interest to date. U) Costs. (k) Interest, (1) Any other relief the court may deem fit. 1.3 The Complaint is opposed and to that effect, the Respondent filed an Answer and Affidavit in Support of the same on 15th July, 2024. 2.0 THE COMPLAINANT'S CASE 2.1 The gist of the Complainant's case vide his affidavit and oral evidence is that he was employed by the Respondent on 20th June, 2016 as a press photographer based at Ndola. On 12th April, 2023 he took a photo and for verification purposes submitted it via email to 12 editors who included the Managing Editor and Deputy Managing Editor as per standard J3 procedure. The photo was a news item depicting people buying mealie meal in an organised manner by way of queuing up. Exhibits "SZl" to "SZ4" in affidavit in reply show emails to editors and alternative photos he sent at same time as the said photo. 2.2 According to the Complainant, the photo was taken with instructions as Chango Sampa who was playing the role of his supervisor on that particular day in the absence of his actual supervisor Angela Ntentabunga phoned him and requested him to take a photo of people queuing up to buy mealie-meal. The said pictorial evidence was for purposes of confirming the government's position as per the headline of the Respondent's newspaper on that day otherwise marked "SZ3". The photo was used on the Respondent's facebook page as it was posted by an online assistant editor one Conrad Chikweto who was on duty that day. 2.3 The Managing Director Simate Simate saw the photo and opined that the same was not in good taste. Hours later the Complainant was called by his supervisor Mr. Chimwemwe Mwale around 14:00 hours informing him that the photo was deemed as insensitive. According to the Complainant his supervisor wrote to him to exculpate himself and show cause why disciplinary action should not be taken against him. According to the Complainant on that particular day 12th April, J4 2023 the government agreed that there was mealie meal shortage in the country, and a copy of a similar photo around same time was published on 25th April, 2023 by the Respondent in their sister newspaper Times of Zambia run by the same management as the ' Respondent as per exhibit "SZ4" 2.4 He exculpated himself via a letter dated 13th April, 2023. He explained that the photo was a news item that depicted the real situation in Ndola at the time. He also explained that he was merely acting on instructions and the alleged sensitive photo was not posted by him, as it was not his role to authorize publication of photos. The exculpatory letter was not convincing to management. 2.5 He was charged on 25th April, 2023 for the offence of issuing unauthorised press statements to the public or mass media on the Respondent's business without authority contrary to clause 10.29 of the Respondent's disciplinary code. The particulars of the offence as per the charge form "SZ8" were that he took a photo of people queuing up to buy mealie meal and sent it to Lusaka. The Respondent claimed that the photo had been solicited or requested for, when in fact not. 2.6 On 5th May, 2023 he attended the disciplinary case hearing, however the hearing did not take off as J5 management changed the charge. The chairperson one Richard Nyirenda was of the view that the charge was misplaced and guided the human resource department to rectify the anomaly. 2.7 On 9th May, 2023 he was again charged with the offence of gross negligence resulting in loss of property or funds contrary to clause 10.12 of the disciplinary code. The disciplinary case hearing was convened and on 12th June, 2023 he was dismissed from employment. On 16th June, 2023 he appealed against the said dismissal and one ground of appeal was the charge under clause 10.12 was misplaced, not clear and did not match the alleged act of sending a photo to the editors. The appeal hearing was held on 12th July, 2023 and the dismissal was upheld. 2.8 He reported the matter at the labour office and a meeting was held with the Respondent on 16th August, 2023. The labour officer observed that his dismissal was wrongful and unfair. According to the Complainant, he was wrongfully and unfairly dismissed as he was not given any opportunity to exculpate himself in writing on the second charge in accordance with clause 5.1.6 of the disciplinary code. 2.9 According to the Complainant, he is seeking payment of his defined contributions amounting to K241, 871.00 which were owed to him as at 31st December, 2018. The same is a term of his contract of employment as per exhibits "SZ16" and "SZl 7". The Complainant prayed that he should be given severance pay from date of employment to date of dismissal as well damages for distress. 2.10 In cross-examination, the Complainant maintained that he was not given an opportunity to exculpate himself in writing, "SZ9" confirms that he signed that document on 9th May, 2023 but did not write the exculpatory statement within 48 hours. He admitted that the disciplinary committee proceeded to hear him without him submitting the written statement. He confirmed that in the charge, it was alleged that he took a photo and sent it to Lusaka. He admitted that he took the photo and sent it to Lusaka. He admitted that if he did not take the photo, it would not have been published. He admitted that the person who published the photo one Conrad Chikweto was also dismissed. 2 .11 He confinned that he was assigned tasks by his supervisors from time to time. He denied having taken the photo without authority from his supervisor. He denied that his testimony was that he had authority from supervisor. He admitted having been called by Chongo Sampa to take the photos. He admitted that J7 Chango Sampa was not his supervisor. The Complainant denied having been informed by the Managing Director that the photo was not in good taste. He maintained that he challenged the second charge during the disciplinary hearing. He confirmed that "SZ12"was written to the appeals committee and not disciplinary committee so he was challenging the charge to appeals committee. 2.12 Still in cross-examination, the Complainant admitted that the disciplinary committee communicated the decision to dismiss him and the appeals committee communicated their decision upholding the dismissal. When referred to exhibit "SZl 7" he maintained that he asked the Respondent to explain the document to him before signing. He was entitled to money at the time it was transferred to Madison. He confirmed that at the time of dismissal he had not attained retirement age and his contract did not have specific date when it would terminate. 2.13 In re-examination the Complainant explained that he did not write exculpatory statement as advised in exhibit "SZ9". He clarified that he did not need authority to take a photo as a photographer and the said photo was taken through good judgment. J8 2.14 The second witness for the Complainant was Conrad Chikweto who testified that he worked as assistant online editor with the Respondent and his role was to work on the website and all social media platforms. Part of his job was to receive stories from reporters in the field. On 12th April, 2023 he received a picture story from the Complainant. His job on that day was to determine whether the picture was newsworthy or not. Based on what was pertaining on the Copperbelt, he thought the picture was newsworthy and he published the same. 2.15 According to Chikweto, the reporters' role is just to send news and the online desk determines whether the same can be published or not. The Complainant's role ended at sending the stories and it was up to the online desk to work on those stories. Chikweto explained that there was a shortage of mealie meal and on that particular day, government acknowledged what was happening through the Respondent's newspaper. He thought it was wise to sensitise or alert the concerned residents of Masala as the picture stated that Masala residents could now purchase mealie-meal at the Star Milling outlet in Masala. 2. 16 In cross-examination Chikweto confirmed that his contract was different from that of the Complainant. His role was defined by the contract of employment. He confirmed that he was equally dismissed by the Respondent because of the picture he published and did not attend the Complainant's disciplinary hearing. 3.0 THE RESPONDENT'S CASE 3.1 The gist of the Respondent's case vide its Answer is that the Complainant was not wrongfully or unfairly dismissed from employment. He took and caused to be published a photo without authorisation as Chango Sarnpa whom he claims gave him the authority was not his supervisor or even an employee of the Respondent but a mere freelance photographer engaged by the Respondent from time to time. 3.2 The Respondent also contends that the Complainant's conduct was contrary to the Managing Editor's guidelines regarding not taking pictures relating to mealie meal shortages as the same contradicted the government's position of there being sufficient mealie meal supply in the country. 3.3 The evidence of the Respondent via the affidavit and oral testimony of Richard Nyirenda the Chief Internal Auditor who was the first witness for the Respondent is that the disciplinary procedure was followed and the Complainant was allowed to express himself during JlO the hearing. He was given an opportunity to respond to the charges in writing within 48 hours. He wrote in relation to the first charge but did not respond in writing to the second charge. Having not received a written response, the committee proceeded to hold the disciplinary hearing which led to his dismissal. During the disciplinary hearing, the committee changed the charge from clause 10.29 to 10.12 which was within the committee's prerogative. 3.4 According to Nyirenda, earlier, the Managing Editor issued an instruction to all the editors on the issue of mealie-meal shortages indicating that this was a sensitive matter and all stories relating the same had to be cleared because the Respondent had to communicate government's position on the matter. Government's position was that there was no shortage of mealie-meal. 3.5 On the material day, the Complainant was off duty but took a picture that he sent to the editors. The Complainant carried out an assignment without approval from his supervisor the Photo Editor and failed to use good judgment as per the requirements of clause 1.1 of the Editorial Policy and Code of Ethics. The picture was published by the assistant online editor without approval. The government raised a Jl 1 concern through the Managing Director's office and the picture was removed. 3.6 The Complainant was not unfairly treated as both the Complainant and assistant online editor were charged and dismissed for publishing the picture which was in bad taste with the key stakeholders being the government. Nyirenda explained that Respondent's mandate is to communicate government's position regardless of the realities on the ground. The Complainant took a picture not in line with Managing Editor's direction. The hearing was held in accordance with the procedure and the Complainant did not challenge the charge. 3.7 Nyirenda's evidence was that by letter dated 17th December, 2018, under clause (b) the Respondent and the Complainant agreed that the Complainant's benefits were to be paid over a period of 5 to 10 years as per exhibit "RN6". The benefits were contractual and on the conditions that the same should have been transferred into the pension scheme. Secondly in the event that the Complainant got dismissed from employment, he would only be entitled to money already transferred to the pension scheme. Lastly where the Complainant is dismissed before the Respondent transfers the benefits to the pension scheme, the Complainant would forfeit payment of the Jl2 benefits as per the Defined Contribution Pension Scheme Rules "RN7". 3.8 In cross-examination, Nyirenda confirmed that the accumulated pension benefit 1n the amount of K241,871.70 was not paid to the Complainant. He also confirmed that the Complainant has not been paid severance pay. He admitted having chaired two disciplinary committees 1n reference to the Complainant and the same related to two separate charges under the disciplinary code. He admitted that in relation to discipline, the starting point is the supervisor. When referred to exhibit "SZ6" he confirmed that was the commencement of disciplinary proceedings on the first charge. 3.9 Nyirenda confirmed that the committee changed the charge from clause 10.29 to 10.12. He could not confirm that the Complainant's supervisor never asked the Complainant to show cause why he should not be disciplined under clause 10.12. He denied that disciplinary proceedings under clause 10.12 were commenced by the committee and not the supervisor. He confirmed that there is no evidence to prove loss of funds or damage to company property. He admitted that there is no evidence to prove that an instruction relating to mealie-meal stories was issued by the Managing Editor. He confirmed that government's .Tl3 position was that there was no shortage of mealie meal. 3.10 When referred to exhibit "SZ3"Nyirenda confirmed that was the Respondent's headline story of 12th April, 2023 "HH acts on staple food-emergency response activated to deal with mealie-meal shortages". He could not confirm that it was confirmation by the Head of State that there was a shortage of mealie-meal. 3.11 In re-examination, Nyirenda clarified that first disciplinary case hearing was in relation to the first charge and during that hearing, the charge was changed to clause 10. 12. The second hearing related to the new charge. The nature of the loss and damage was intangible and difficult to quantify. The Respondent lost goodwill with the stakeholders being government. The instructions from the Managing Editor were verbal. The government's position was that there was no shortage of mealie-meal. 3.12 The second witness for the Respondent was Susan Daka the Respondent's Director of Finance who is in charge of accounting for revenue, making authorised payments and interpretation of approved accounting policies and procedures. She testified that on 17th December, 2018 a letter was issued to all permanent and pensionable employees in relation to the defined Jl4 contribution pension scheme "SZl 7". Prior to the issuance of the letter, several meetings and consultations were held with permanent and pensionable employees. 3.13 When the letter was issued to the Complainant, it had a figure of K241, 871.70. The figure had conditions for instance how it was going to be paid in the defined contribution pension scheme. The Respondent was going through financial distress. There was an agreement with the employees including the Complainant that the money would be transferred into the scheme between 5 to 10 years. Only funds that had been transferred into the defined pension scheme would be accessible. The Complainant agreed to the said conditions. 3.14 When the Complainant was dismissed, her duty was to interpret the contents of the letter. All the money that had been transferred into the scheme was accessed by the Complainant. The rest of the money is only accessible upon attainment of the age of 55 and one is still an employee of the Respondent. 3.15 According to Daka, "RN7" clause 1 l(b) states that if an employee is dismissed for misappropriation or misuse of employer's property, the Respondent 1s entitled to make a claim from the scheme. The Complainant was not 55 years at the time of dismissal and the money was not due to him. 3.16 In cross-examination, when referred to exhibit "SZl 7"Daka confirmed that condition (f) was part of the conditions and dismissal is one of the instances where the Complainant was entitled to receive the payment. When referred to exhibit "RN7" clause 1 l(b) she confirmed that an employee loses the pension benefit if they are dismissed for misappropriation or misuse of company property. She agreed that the property lost was goodwill from the government and the company would deduct from the scheme if an employee is dismissed for misappropriation or misuse of property or money. She admitted that there is no evidence to quantify the goodwill that was lost by the Respondent on account of the Complainant. 3.17 Further in cross-examination, Daka admitted that the Complainant was not informed about any quantifiable goodwill during the disciplinary proceedings. Goodwill is difficult to quantify hence there was no deduction from the scheme in relation to the Complainant. She confirmed that the Complainant was given an opportunity to be heard based on "SZ9" and there is no mention of loss of goodwill by the Respondent. She admitted that the charge does not mention anything to do with the government's position on mealie-meal. She J16 confirmed that the Complainant was dismissed without any of those things being mentioned in the charge sheet. 3.18 In re-examination, Daka clarified that not all the benefits were transferred to the scheme. The Complainant only had access to what was transferred. 4.0 THE PARTIES' SUBMISSIONS 4.1 Both Learned Counsel for the Complainant and the Respondent filed written submissions on 30th September, 2024 and 11th October, 2024 respectively. I am highly indebted to learned Counsel and may refer to the submissions as and when necessary. 5.0 ANALYSIS AND DECISION 5.1 From the outset, I must hasten to state here that emphasis on the burden of proof has been given by the Supreme Court in a number of cases one of which is Wilson Masauso Zulu v Avondale Housing Project Limited1, 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 allegation, it is for him to prove those allegations. A J17 Plaintiff who has failed to prove his case cannot be entitled to a judgment whatever may be said of the opponent's case." 5. 2 The import of the above precedent is that the Complainant has a duty to prove on the balance of probabilities his complaint against the Respondent. 5.3 It 1s uncontroverted that the Complainant was employed by the Respondent as Press Photographer on 20th June, 2016 as per offer of employment "SZl". 5.4 On 12th April, 2023 the Complainant took a photo "SZS"of people queuing up to buy mealie-meal and the same was posted on the Respondent's online platform by Conrad Chikweto an assistant online editor. 5.5 Arising from the same, the Complainant was on 25th April, 2023 initially charged under clause 10.29 of the Respondent's disciplinary code with the offence of issuing unauthorized press statements to the public or mass media on the Respondent's business without authority. On 9th May, 2023 the charge was changed to the offence of gross negligence of duty resulting in the loss of the Respondent's fund or damage to the Respondent's property under clause 10.12. The Complainant was found guilty of the said charge and Jl8 dismissed from employment on 12th June, 2023. He appealed against the dismissal, however, the appeal was unsuccessful. 5.6 According to the Complainant, his dismissal from employment was wrongful and unfair. 5. 7 Clearly the issues for the determination of this court are whether the Complainant's dismissal from employment was wrongful and unfair, whether the Complainant is entitled to payment of K24 l ,87 l. 70 defined contribution benefit and severance pay. (i) Wrongful and Unfair Dismissal 5.8 In addressing the Complainant's dismissal from employment, I am guided by the case of ZESCO Limited v David Lubasi Muyambango2 where the Supreme Court held that: "It is not the function of the court to interpose itself as an appellate tribunal within the domestic disciplinary procedure 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." .T 19 5. 9 I am also fortified by the case of Attorney General v Richard Phiri3 where the court held that:- "Once the correct procedures have been followed the only question which can arise for consideration of the court, based on the facts of the case, would be whether there were in fact, facts established to support the disciplinary exercise of power will be regarded as bad if there is no substratum of facts to supports the same." 5.10 The import of the afore cited precedents is that this court is not an appellate tribunal within the domestic or employer's administrative disciplinary procedures. The duty of the court is to ascertain whether or not there was a proper reason to move the employer to exercise its disciplinary power against the employee, and whether the said power was properly exercised. 5.11 The Complainant has submitted that his dismissal from employment was wrongful because he was not given an opportunity to exculpate himself in writing when he was charged for the second time and this is contrary to clause 5.1.6 of the Respondent's disciplinary code and gnevance procedure. Learned Counsel for the Complainant cited the case of Eston Banda and Edward Dalitso Zulu v The Attorney General4, where the Supreme Court guided that: J20 "Wrongful" refers to a dismissal in breach of a relevant term embodied in a contract of employment" 5.12 The Respondent on the other hand submitted that the Complainant was not wrongfully dismissed from employment because when the first charge was amended to the second charge of gross negligence of duty resulting in loss of funds or damage to company property he was asked to exculpate himself in writing within 48 hours as per exhibit "SZ9".However, the Complainant on his own accord did not submit his written statement within 48 hours and the disciplinary committee proceeded to hear him without the written statement. 5.13 I have carefully analysed exhibit "SZ9" which is a disciplinary charge form for the offence of gross negligence of duty resulting in loss of company funds or damage to company property under clause 10.12. The same was received by the Complainant who acknowledged receipt by signing on 9th May, 2023. Page 2 of the said charge form reads in part as follows: "Having heard the charge, you are requested to submit a written statement to the Human Resources and Administration Manager a copy to your Department on the form attached ]21 hereto, to exculpate yourself within forty eight (48) hours from the date of the charge." 5.14 In his own testimony during cross-examination, the Complainant confirmed having received the said charge form and that he did not submit a written exculpatory statement within 48 hours as requested. I must state here that the Supreme Court of Zambia has pronounced itself on several occasions on the conduct of the disciplinary process and that what is cardinal is that an employee · facing charges 1s given an opportunity to be heard. In the case of Sitali v Central Board of Health5 where it was held that: , "Hearing for the purposes of disciplinary proceedings is not confined to physical presence of an accused (employee) and giving oral evidence. In our view a submission of an exculpatory letter in disciplinary proceedings is a form of hearing. What is important is that a party must be afforded an opportunity to present his or her case or a defence either orally or in writing. .. " 5.15 In the same vein, this court is of the considered view that even in the absence of a written exculpatory statement, as long as an employee is given a chance to be heard by way of oral submissions during a disciplinary case hearing then the said opportunity to be heard is just as good. 5.16 In casu, after the charge was amended to gross negligence resulting in loss of company funds or company property under clause 10.12 of the Respondent's disciplinary code, the Complainant was asked to exculpate himself in writing within 48 hours. This was in compliance with clause 5.1.6 of the Respondent's disciplinary code. However, on his own volition, the Complainant did not submit the written statement. The Complainant cannot therefore claim that he was wrongfully dismissed because he did not exculpate himself in writing. The Respondent complied with clause 5.1.6 of the disciplinary code and the written state1nent notwithstanding, the Complainant was heard orally during the disciplinary case hearing and given an opportunity to defend himself. It is the considered position of this court therefore that the Complainant has failed to prove on a balance of probabilities that he was wrongfully dismissed from employment. The said claim is accordingly dismissed for lack of merit. 5 .1 7 Turning to the claim for unfair dismissal, the Complainant has submitted that he was unfairly dismissed for the offence of gross negligence of duty leading to loss of company funds or damage to J23 company property under clause 10.12 as the said charge was unclear and did not match the alleged act. 5.18 The Respondent on the other hand submitted that the Complainant was not unfairly dismissed as he took a photo and sent it to Lusaka without authorization. Learned Counsel for the Respondent cited the case of Moses Choonga v ZESCO Recreation Club, Itezhi tezhi6, where it was stated that: "Unfair dismissal occurs when an employee's contract is terminated in breach of any statutory provision linked to the protection of the right of employment and the promotion of fair labour practices that require employers to terminate contracts of employment only on valid, specified and reasonable grounds. Unfair dismissal focuses on the substance of the dismissal, it is for an employer to deduce whether the reasons for dismissal are justified in terms of the statute. A dismissal is unfair if no valid reason is given by ·an employer that terminated the employment or the charge the employee is dismissed for is unsubstantiated or unproven." 5.19 The disciplinary charge form "SZ9'' already alluded to herein above reads in part as follows: J24 "Clause 10.12 Gross negligence of duty resulting in loss of ZDML funds or damage to ZDML property. FULL DETAILS OF THE CHARGE AND CIRCUMSTANCES On April 12, 2023, you took and sent a picture of people queuing up for mealie meal to Lusaka claiming that the same had been solicited or requested for when in fact not. The said picture which turned out be inappropriate was later posted on the Zambia Daily Mail online platform without authority." 5.20 From the details of the charge, it is clear to this court that the issue of lack of authority only comes about in relation to the posting of the photo "SZS" on the Respondent's on.line platform. Therefore, the issue of the Complainant who was a photographer obtaining authority or lack of it thereof from his supervisor or the named Chon.go Sampa whom the Respondent denies to be its employee does not arise. 5.21 The duty of the Complainant as a photographer was to take photos and as explained by the Complainant, after taking the photo in issue, he sent the same via email to 12 editors as per standard procedure. Further as explained by Conrad Chikweto, the Complainant's ]25 role ended at taking the photos and it was up to him as assistant online editor to post the photo or not. The alleged posting of the photo on the online platform was done by the said Conrad Chikweto and this court does not see how the Complainant is blameworthy for the same. 5.22 Not only that but also that the Respondent's first witness Nyirenda confirmed in cross-examination that there is no evidence to prove that an instruction relating to mealie-meal stories was issued by the Managing Editor. As per the headline of the Respondent's newspaper on the date in issue 12th April, 2023 "HH acts on staple food-emergency response activated to deal with mealie-meal shortages", the position communicated by the Respondent to the public was that there was a shortage of mealie-meal. It is the considered position of this court that the same resonates with the photo taken by the Complainant and the Respondent cannot be heard to argue that the photo taken by the Complainant was contrary to its major stakeholder's position on mealie-meal shortage. 5.23 The Respondent also does not state how the taking of the said photo by the Complainant was gross negligence of duty as does not even quantify what funds were lost or damage was caused to the J26 Respondent's property. The Respondent's second witness Daka labored to explain that what was lost was good will but confirmed that the same was not quantifiable. 5.24 Having fully analysed the incident of 12th April, 2023 leading to the charge and dismissal of the Complainant, this court is of the considered view that for the aforesaid reasons, indeed the charge of gross negligence of duty leading to loss of funds or damage to company property was not only misplaced but also unsubstantiated. There was absolutely no substratum of facts upon which to charge and dismiss the Complainant from employment. I therefore find and hold that the Complainant has proved on a balance of probabilities that his dismissal from employment was unfair. The said claim is accordingly granted. 5.25 In ascertaining the measure of damages for unfair dismissal, I take into account the guidance of the Supreme Court in the case of Dennis Chansa v Barclays Bank Zambia Limited7 that in the present economic environment, employment is quite scarce and it is for the said reason the Complainant was still unemployed at the date of hearing this matter. J27 5.26 I therefore find thirty-six (36) months' salary appropriate as damages for unfair dismissal and I accordingly award the same to the Complainant. (ii) Payment of K241,871.70 defined contribution benefit 5.27 According to the Complainant, the defined contribution benefit was part of his contract of employment and he had accrued an amount of K241, 871.70 as per exhibit "SZ17" 5.28 The Respondent does not deny that the Complainant accrued the said amount as confirmed by the second Respondent witness Susan Daka who added that all the money that had been transferred in to the pension scheme was accessed by the Complainant and that as per clause 1 l(b) of the defined contribution pension scheme rules ''RN7" only if an employee is dismissed for misappropriation can the Respondent deduct from the scheme. The Respondent's only argument is that at the time of dismissal, not all the money had been transferred into the Pension Scheme and therefore the Complainant cannot claim the same as it was part of the conditions related to the defined contribution benefit. J28 5.29 The principle of sanctity of contract was properly elucidated 1n the English case of Printing and Numerical Registering Company v Simpson8also referred to by Learned Counsel for the Respondent where it was observed that: "If there is one thing more than another which public policy requires, it is that men of full age and competent understanding shall have the utmost liberty in contracting and that their contract when entered into freely and voluntarily shall be enforced by courts of justice.'' 5.30 The letter of 17111 December, 2018 "S217" written by the Respondent states that his accrued benefits under the defined pension scheme as at 3pt December, 2018 amount to K241, 871.70 and will be transferred to Madison Pension Scheme over a period of between five to ten years. The letter of 3 P' January, 2019 "SZ16" also confirms the san1e. 5 .31 Particularly clause (f) of exhibit "SZl 7" provides that once all the accrued benefits arc transferred into the pension scheme before attaining 5 5 years, the Cornplainant can get the total benefits through separation which includes dismissal. J29 5.32 Going by the principle of sanctity of contract, the parties agreed that the Complainant's accrued benefits under the defined pension scheme as at 31st December, 2018 was an amount of K241, 871.70. The law on accrued benefits is settled and guidance was given in the case of Richard Musenyesa v Indo Zambia Bank Llmited9 • 5.33 It is this court's considered position therefore that accrued benefits cannot be forfeited and the Complainant having accrued the sum of K241, 871.70 under the defined pension scheme as at 31st December, 2018, despite the same been transferrable over a period of five to ten years, became due and payable to the Complainant at the date of dismissal. I therefore find and hold that the Complainant has proved on a balance of probabilities his claim for payinent of K241, 871.70 as the defined contribution benefit. The said claim is accorcLingly granted and should be paid by the Respondent. 5.34 I also order that monies that will be found due and payable to the Complainant should be paid with interest at the average short term deposit rate from the date of Complaint to the date of Judgment, and thereafter at the current lending rate as approved by the Bank of Zambia until full payment. BO (iii) Severance pay 5.35 According to the Cmnplainant, he is entitled to severance pay from the date of employment to the date of dismissal. The Cmnplainant placed reliance on the case of Zubao Harry Juma v First Quantum Mining and Operations-Road Division10, where the Court of Appeal held that: "Our interpretation of the above provision is that employees engaged on permanent basis are entitled to severance package under section 54(1)(c) of the Employment Code Act. The Appellant was entitled to severance pay in form of gratuity in terms of section 54(1)(c) of the Employment Code Act. It was an accrued entitlement from the date of enactment of the Employment Code Act to the date of dismissal. .. " 5.36 The Respondent on the other hand submitted that in the recent past, the Court of appeal has rendered two apparently conflicting decisions on whether employees on permanent and pensionable basis are entitled to severance pay. The case of Stanbic Bank Zambia Limited v Natasha Patel11 where it was pronounced that an employee on permanent and pensionable J31 contract is not entitled to severance pay should be relied on despite the said decision being delivered earlier that the Zubao case cited by the Complainant. 5.37 I must state here that it is trite that where there are two apparently conflicting decisions from the same court, the later is binding and overrules the earlier decision by implication. Therefore, as per the guidance of the Court of Appeal in the Zubao case which is the latest decision an employee on permanent and pensionable contract is entitled to severance pay 1n form of gratuity under section 54(1)(c) of the Employment Code Act No. 3 of 2019. 5.38 That notwithstanding, this court is of the considered view that the Zubao case is distinguishable from the matter in casu as the Respondent has a defined contribution benefit pension scheme. The relevant provision of the law applicable herein is section 54(1)(b) of the Employment Code Act. The Complainant cannot therefore receive severance pay in form of gratuity when he is already entitled under the defined contribution pension scheme as provided under the aforementioned provision of the law. For the said reasons, the claim for severance pay from date of employment to date of dismissal is accordingly dismissed. J32 .:. 5.39 Each party shall bear their own costs. Informed of Right of appeal to the Court of Appeal within thirty (30) days from the date hereof. Delivered at Ndola this 15th day of November, 2024. Hon. Just" 'e D. Mulenga HIGH COURT JUDGE .133