Simon Mwansa Mutale v CL Security Services Limited (COMP/No.IRC/ND/54/2016) (12 December 2017) – ZambiaLII

j I L ' (' ( IN THE HIGH COURT FOR ZAMBIA COMP NO. IRC/ND/54/2016 AT THE NDOLA DISTRICT REGISTRY HOLDEN AT ND OLA • BEFORE: Hon Judge E.L. Musona For the Complainant: :\Jr. K. ,\lscmi of Mes Ts J.B. Sakala and Company For the Respondent: Mr. \'. N. Michela of Messrs V. N. Michela and Partners JUDGMENT Date: 12111 December, 2017 Cases referred to 1. Makaya ,, Payless Supermarket (Pty) Ltd (2007) 1 ULR 521 2. Kunda ,, Kon kola Copper JVIincs Pk Appeal Nu. 48 of 2005 3. Zambia China Muluugusl1i Tcxliles( joinr venture) Ltd v Gabriel Mwarni scz appeal number 28 of 2003 4. Setl'ec Steel and Wood Processing and 2 others v Zambia National Commercial Ilank Pie scz appeal number 39 of 2007 5. Carnfine Tomaidah Daka v. Zambia National Commercial Bank Pie (2012) z.r 9 volume 3 6. Attorney General v. Richard Jackson Phiri (1988-1989) zr 121 .12 Legislation refen-cd to 1. The Minimum Wages and Conditions of Employment(Gcneral) (Amendment) Order which is Statutory Instrument No. 46 of2012 of the Laws of Zambia 2. The Minimum Wages and Conditions of Employment (Genei-al) Order of 2011 This Complaint was filed by Simon Mwansa Mutalc. The Complaint was filed against CL Security Services Limited. I shall therefore refer to Simon Mwansa Mutale as the Complainant and to CL • Security Services Limited as the Respondents which is what the parties to this action actually were . The Complainant's claim is for the following reliefs:- /. An order that the termination ol' emp/o_yment of the Complainant by the Respondent was wrongful and unfair. 2. Payment of the following:- (a) Leave pay Kl ,400.00 (b) Redundancy Benefits K 1,400.00 (c) Underpayment of salary K2, 136.00 (d) Housing allowance K2,520.00 (e) Lunch allowance K 1.440.00 ({) Transport allowance K 1,224.00 (g) Balance on the salary for Nov 20 I 3 K 382.00 K 10,502.00 3. Interest on (ii) above at Commercial bank /ending rnte 4. Costs of and incidental to these proceedings The duty for this court is to ascet1ain whether or not the Complainant has pl"Oved his claims. In his evidence, the Complainant CW I told the court that he was employed by the Respondents as • security guard and he worked fo1· one ( I) year and one (I) month. He was employed on the J3 151 of November, 2012 and his contract was terminated by the Respondents on the 10111 of November, 2013. He referred to the letter of termination of employment which was marked as "SMM2" in the Affidavit in Support of Notice of Complaint. He told the court that he was dismissed on accusations of refusing to wear a uniform and refusing to obey lawful instructions. Before his dismissal, he had a cousin's funeral. On the 8th of November, 2013, he requested for • permission from the Respondents to attend the burial on the 9th of November, 2013. He was given permission to attend the burial by the Respondents' Branch Manager Mr. Shabenzu. When he reported for work on the I 0th of November, 2013, he was dismissed by the Respondents. He told the court that he wanted a payment of a redundancy package,leave days, housing allowance, transport allO\-vance and lunch allowance. He told the court that he was being underpaid by the Respondents as his salary was 1<522.00 monthly when the minimum wage for security guards by law was K700. He further told the court that there was no reorganization going on at the Respondents' company at the time of his dismissal and the labour force was not being reduced. l I RWI was Hopkins Mukuka. He told the court that the Complainant's employment was terminated I • by the Respondents because of his absenteeism from work. Upon termination of employment, the I I Respondents pay for leave days, salary and uniform bond which the Complainant was paid. He I '-' told the court that the Complainant was not entitled to a redundancy package as his contract did not provide for redundancy. The Respondents were not paying the Complainant lunch allowance or housing allowance. The basic pay of K522.00 which was being paid to the Complainant was inclusive of transport allowance. In cross-examination he admitted that the Complainant was not given 30 days' notice, prior to his termination and he was not paid in lieu of notice. He admitted that the Complainant was not charged or given an opportunity to be heard, neither was he given an opportunity to appeal. J4 He further admitted that the letter of termination given to the Complainant by the Respondents and marked as "SMM2" in the Complainant's Affidavit in Support of Notice of Complaint does not state that the Complainant was absent from work for 5 days. He told the court that the letter of termination only stated that the Complainant was absent from work without permission. The penalty of being absent from work as per the Respondents' Disciplinary Code is a verbal warning, but the Complainant was not given a verbal warning. He had no proof before court to show that the Complainant failed to follow instructions or to wear part of his uniform. He told the court that • the penalty for failure to follow instructions was a deduction from the salary and no written warning was issued by the Respondents to the Complainant for the alleged failure to wear part of the uniform. R W 1 further told the court that he had no proof to show that the Complainant was paid all his dues. The Complainant was underpaid as his salary should have been k700.00, and the Respondents have not paid him the difference. Having looked at the evidence, I must now consider the reliefs sought. • I. An order that the termination of employment of the Complainant by the Respondent was .._; wrongful and unfair. I I I I By definition, according to the Learned Authors Abbott, K; Pendlebury, N and I I Wardman, K: On Business Law, 8th Edition, pgs 562-574:- I I "wrongful and or unlawful dismissal, also called wrongful termination or unlawful I I discharge arc both legal phrases, describing a situation in which an employee's I I contract of employment has been terminated by the employer in circumstances where I I the termination breaches one or more terms of the contract of employment, or a I I I statute provision in em ploy men t law." I I I I I I ' JS Wrongful dismissal is a dismissal which arises when the employer has breached a term of the contract of employment when dismissing an employee. Wrongful dismissal also arises when the allegation upon which the employee was dismissed was not proved against the employee. In employment law, these are the only two grounds which amount to the dismissal of an employee to be wrongful. I have seen the letter of termination written by the Respondent to the Complainant which • is marked as aSMJV!2" in the Complainant's Affidavit in Suppo1t of Notice of Complaint and the reasons for termination that are given in that letter are that the Complainant was absent from duty without any permission, he failed to follow instructions from his supervisors and he refused to wear part of his uniform while on duty. Throughout the Complainant's testimony. he told the court that he had asked for permission from the Respondent's Branch Manager Mr Shabenzu to attend his cousin's burial on the 9th of November, 2013 which permission he was granted. The Respondents in their Answer averred that the Complainant's employment was terminated because he absented himself from work for a period of over 5 days and the penalty for that is dismissal. RW I told the court that nowhere in the letter of termination written by the Respondents to the • Complainant does it state that he was absent for over 5 clays. He also told the court that he had no proof to show that the Complainant was absent from work for 5 days or that he failed to follow instructions. The allegations raised by the Respondents were not proved against the Complainant. I am equally persuaded by the case of' Makaya v Payless Supermarket (Pty) Ltd (2007) 1 BLR 521, where it was stated that:- "The court ought to determine whether there was any evidence to prove that the Appellant had indeed committed an offence for which he ought to have been dismissed" J6 It is trite law that he who alleges must prove his allegations, as per the Supreme Court's decision in the case of Kunda v Kon kola Copper Mines Pie Appeal No. 48 of 2005 where it was stated that:- "He who alleges must prove the allegations. This principle is so elementary, the Court has had on a number of occasions have to remind litigants that it is their duty to prove their • allegations. Of course it is a principle of law that he who alleges must prove the allegations." I am satisfied that the Complainant have managed to prove his claim for wrongful dismissal because the allegations of being absent for 5 days, failing to follow instructions and refusing to wear a uniform were not proved against them by the Respondents. ii. Unfair dismissal Unfair dismissal relates to disciplinary procedures in dismissing the employee. If the disciplinary procedure is not followed, the dismissal amounts to unfair dismissal. In order for the dismissal to be fair, the employer must adhere to disciplinary procedures and the reason for the dismissal must be valid . • According to Paragraph 323 of Halsbury's Laws of England, Volume 16, 4th Edition:- " In determining whether the dismissul of un employee was fair or unfair, it is for the employee to show: (1) What was the reason, or if there was more than one, the principle reason for the dismissal, and (2) That it was a reason which: (a) related to the capability or qualifications of the employee for pcl'forming work of the kind which he was employed by the employer to do related to the conduct of the employee ... " ----------------------- -··--·--• - ------ --------------- --- -----, J7 From the evidence on record, I have observed that the Complainant was not charged for the alleged offences of being absent from duty for 5 days, refusing to follow instructions and refusing to wear his uniform. No disciplinary hearing was conducted to get the Complainant's side of the story. Further there was no valid reason for the Complainant's termination of employment. According to Halsbury 's Laws of England 4th Edition, Volume 40 November 2000 at page 375 • paragraph 407 the learned authors state that:- " When drawing up disciplinm:i• procedures, employers s!tould have regard to the requirements of natural justice. T!tis means that workers should be informed in advance of any disciplinmy hearing of the allegations that are being made against them together with the supporting evidence and be given mt opportuni~I' of challenging the allegations before decisions are reached. Workers should be given the rig/ti of appeal against any decisions taken" In the case of Zambia China Mulungushi Textiles( joint venture) Ltd v Gabriel Mwami scz appeal number 28 of 2003, the Supreme Coutt stated that:- • "It is certainly desirable that an employee who will be affected by an adverse decision is given an opportunity to be heard." Further in the case of Sctrcc Steel and Wood Processing and 2 others v Zambia National Commercial Bank Pie scz appeal number 39 of 2007 the Supreme Court stated that:- "a decision on the merit is a decision arrived al after hearing both parties" In the case of O,roline Tomaiclah Daka v. Zambia National Commercial Bank Pie (2012) z.r 9 volume 3, it was stated that:- J8 "Disciplinary procedures are designed to ensure that the employee is given eve,y opportunity to put right any conduct which is likely to be the subject of critical appraisal; to this extent the object oft he procedures is corrective ratl,er than punitive" In the case of Attorney General v. Richard Jackson Phiri (1988-1989) zr 121 it was stated that- • "Quite clearly, if there is no evidence to sustain charges leveled in disciplinary proceedings, injustice would be visited upon the party concerned ift he court could not then review the validity oft he exercise of such powers simply because lite disciplinlllJ' authority went through the proper motions and followed tlte correct procedures. Based on the foregoing plethora of authorities, a decision on the merit was not arrived at as the Complainant was never charged for the alleged offences of being absent from duty for 5 days, refusing to follow instructions or refusing to wear his uniform. ln any case the letter of termination stated that he was absent from duty without permission. The correct penalty for that offence • according to the disciplinary code is a verbal warning which was never issued to the Complainant. Therefore, procedure was not followed and the Complainant was not given the right to be heard. This is unfair dismissal. The Complainant has managed to prove his claim that the termination of his employment by the Respondent was wrongful and unfair and I hereby make that order accordingly. (2) Payment of the following: (a) Leave pay of K 1,400.00 J9 The Minimum Wages and Conditions of Employment (General) Order of 2011 ·which applies to general workers provides for annual leave in the schedule that:- "5 (1) An employer shall grant leave of absence on full pay to an employee at the rate of two days per month, subject to, and in accorclancc with the following conditions: (a) except on termination of the employee's service, nn employee shall be entitled to leave • only on the completion of six months' continuous service with that employer." Based on the aforecited mandatory provision of the law, 1 hereby grant the Complainants a payment of 24 accrued leave days for the one year he worked with the Respondents as pleaded at the rate of K700.00 per month which was the minimum wage for security guards at the time the Complainant's employment was terrninatcd. (b) Redundancy benefits Redundancy only arises in two scenarios namely the employer ceasing or intending to cease, to carry on the business by virtue of which the employee was engaged; or the business ceasing or reducing the requirement for the employees to carry out work of a particular kind in the place where the employee was engaged, and the business remains a • viable going concern . The Complainant has not led any evidence before this court to show that the Respondents have ceased to carry on business or that the Respondents were reducing the requirement for employees to carry out work of the particular kind that the Complainant was doing. The Complainant has not proved that the reason his employment contract was terminated by the Respondents was redundancy, hence the claim for redundancy benefits fails. (c) Underpayment of salary-K2, l 36.00 The Complainant was employed by the Respondents on the Is t of November, 2012 as a security guard. I have seen payslips marked as "SMM3" in the Complainant's Affidavit which show that the Complainant was being paid a basic pay of K522.00. JlO The Minimum Wages and Conditions of Employment(General) (Amendment) Order which is Statutory Instrument No. 46 of 2012 of the Laws of Zambia provides in the schedule that:- "1. The minimum wages shall be follows: (b) Category II-three thousand, six hunclrecl and fourty six kwacha (1<3,646.00) per hour or seven hundred thousand kwacha (K700,000.00) per month, for a person engaged • as a watch person or guard." The K522.00 that the Complainant was being paid as basic pay by the Respondents was clearly below the minimum wage. The Complainrn1t was being underpaid and I hereby order that he should be paid the di ffcrence that was not paid for the one year that he worked as pleaded. (d) Housing allowance-K2.520.00 The Complainant testified that he was never paid his housing allowance from the time that he was employed by the Respondents. R WI con firmed that the Respondent did not pay the Complainant housing allowance. Section 19 of the Minimum Wages and Conditions of Employment (General) Order which is Statutory Instrument No. 2 of 2011 provides that:- • "19. An employer shall, where the employer docs not accommodate an employee, pay the employee a monthly housing allowance at the rate of thirty percent of the employee's basic -salary." Based on the aforecited mandatory provision of the law, the Complainant is therefore entitled to 30% of his basic pay as monthly housing allowance. The claim for housing allowance as pleaded I therefore succeeds. I (e) Lunch allowance-K 1.440.00 I l Based on the evidence on record, it is not in dispute that the Respondent never paid the I Complainant his lunch allowance. I I Jll Section 15 of the Minimum Wages and Conditions of Employment (General) Order which is Statutory Instrument No. 2 of2011 provides that:- 11An employee shall be entitled to a lunch allowance of one hundred and twenty kwacha per month, unless the employer provides a canteen at which the employee may obtain wholesome and adequate meals provided free of charge." • 1 am well guided and hereby award the Complainant housing allowance as pleaded. (f) Transport allowancc-K 1.224.00 The evidence on record is that the Complainant was not paid his transport allowance by the Respondent from the time that he was employed. Section 14 of the Minimum Wages .ind Conditions of Employment (General) Order which is Statutory Instrument No. 2 of 201 I provides that:- "An employee whose duty station is beyond a three kilometer radius from the area of residence shall be paid a monthly allowance of one hundred nnd two thousand four hundred kwacha for transport expenses, unless the employer provides transport for that employee" • I am well guided and hereby award the Complainant transport allowance as pleaded. (g) Balance on the salary for November, 2013 -K382.00 The evidence on record is that the Complainant only worked for IO days 111 the month of November, 2013. He was only paid K140.00. In the case of Kitwc City Council v Nguni (2005) Z.R. 57, it was held that:- "It is unlawful to award a salary or pension benefits, for a period not worked for because such an award has not been earned and might be properly termed as unjust enrichment" ~-~-- . - / -- ----- \ J12 The Complainant did not render any services to the Respondents from the time his employment was terminated on the 10 of November, 2013, therefore to award him the balance of the salary for that month would amount to unjust enrichment. This claim therefore fails. All the awards given to the Complainant shall attract interest at the short term deposit rate • prevailing from the date of the Notice of Complaint to the elate of Judgment and thereafter at the current Bank of Zambia lending rate until full payment. Costs of these proceedings go to the Complainants, to be taxed in default of agreement. Leave to appeal within 30 days from today is granted. Delivered and signed at Ndola this 121h day or December, 20 I 7. Hon E.L. Musona JUDGE