Kurt Venter and Ors v ACC Mining Executors Ltd (IRC/ND/25/2017) (12 December 2017) – ZambiaLII

II NN D T U H S E T HR II GA HL R C E O L U A R T T I O F N O RS Z D AI V M I S B I IO A N HOLDEN AT NDOLA �o\J,R. :� .. I R C / N D / 2 5 / 2 0 1 7 BETWEEN: 'iA :. \_ t1"�s�1!:;.�'-!- ��� KURT VENTER i r l 2 D E C 2 0 1 7 L R'!'. • S r' C O M P L A I N A N T s�_L... .. .�· DANIEL LU KW -4 . � f !2 N ° C O M P L A I N A N T uo FRANCIS MUMA -�-� �f;_A._, l ... ·.::�·ff�_.�3 C O M P L A I N A N T · EVANS MUSONDA . · . • � · 4 T H C O M P L A I N A N T �- - -.•'· AND AAC MINING EXECUTORS LTD RESPONDENT BEFORE: Hon. Mr. Justice E.L. Musona For the Complainants Mr. B. Katebe of Messrs Kitwe Chambers For the Respondents Mr. A. Imonda of Messrs A. Imonda & Co. JUDGMENT th Date: 12 December, 2017 Cases referred to: 1. Wilson Masauso Zulu v Avondale Housing Project Ltd (1982 ZR 172 SC 2. Khalid Mohamed v Attorney General (1982) ZR 49 3. Galaunia Farms Ltd v National Milling Corporation Ltd (2004) ZR 1 SC 4. Kitwe City Council v William Ng'uni (2005) ZR J2 This Complaint was filed by four (4) Complainants namely: 1. M/Kurt Venter 2. M/Daniel Lukwesa 3. M/Francis Muma and 4. M/Evans Musonda A Consent Order was subsequently executed wherein M/Kurt Venter who was 1 st Complainant in this action discontinued his • complaint against the Respondents. This left only three (3) Complainants in the action. I shall continue to refer to M/Daniel Lukwesa as CW2, M/Francis Muma as CW3 and M/Evans Musonda as CW4 which is what the Complainants were at the commencement of their suit. Equally, I shall refer to AAC Mining Executors Ltd as the Respondents. The Complainants' claim is for the following relief: i. An order for payment of the Complainants' salaries plus perks • th for the month of February, 2017 worked up to the 16 ii. An order that the Complainants' dismissal from employment by the Respondent in its respective letters dated 16th February, 2017 which was thereafter upheld in perspective letters dated th 17 February, 2017 amounted to unfair and/or wrongful dismissal, null and void and is of no legal effect. iii. Order of reinstatement of all the Complainants from the effective date of their alleged summary dismissal J3 iv. An order of payment of the Complainants' salaries plus perks and other benefits from the effective date of their alleged summary dismissal to the date of reinstatement and/or v. Damages for breach of contracts. vi. Damages for the manner in which the employment was terminated, the embarrassment endured, inconvenience and the mental and physical torture suffered vii. Exemplary damages viii. Any other order or award as the court may consider fit in the circumstances of the case. ix. Interest on all monies found due. x. Costs of and incidental to the proceedings. The duty for this court now is to ascertain whether or not the Complainants have proved their claims. I have on the outset looked at the cases of Wilson Masauso Zulu v (1), Avondale Housing Project Ltd Khalid Mohamed v Attorney • (2) v General and Galaunia Farms Ltd National Milling Corporation Ltd (3) where it was held that: "A Plaintiff must prove his case and if he fails to do so, the mere failure of the opponents defence does entitle him to Judgment." The first witness for the Complaints was M/Daniel Lukwesa who is one of the Complainants herein. I shall refer to M/Daniel Lukwesa as the Complainants' witness number one (CWl). J4 The evidence by CWl was that he was employed by the Respondents th th on 5 March 2012. He was a Mine Captain. He stated that on 25 January, 2017 he reported for work in the afternoon shift and proceeded to work underground. He and other fellow employees worked well until time to knock off, then they knocked off. The following day was 26th January, 2017. When CWl reported for work on that day he was not allowed to work but instead instructed to write a report concerning how he worked the previous day. He th reported for work on 27 January, 2017 but again did not work. He nd continued reporting on a daily basis until on 2 February, 2017 he was told to report to Head Office to attend a Board of Inquiry. After deliberations at the Board of Inquiry CWl was released but to await th the outcome. On 15 February, 2017 he received a charge letter. He was charged with three (3) counts namely: 1. Passing in water while the pump was running. 2. Not completing the meeting with employees. 3. Failure to stop, look, assess and manage (SLAM). .• He was subsequently dismissed. His appeal was dismissed. CW2 was M/Francis Muma who is also one of the Complainants. The evidence for CW2 was that he was employed by the th Respondents on 4 November, 2013 as a supervisor. He stated that th he reported for work on 25 January, 2017. He went to 3435 meter level underground. At 3435 meter level he noticed a rock which did not blast well because the drilling was poor. JS There was also 3510 meter level which required to be worked on but did not because it was flooded and barricaded. When CW2 reported for work the following day he was asked to write a report about what had happened the previous day. nd On 2 February, 2017 he attended a Board of Inquiry and gave an (. th oral account of what transpired on 25 January, 2017. th On 15 February, 2017 he received a charge letter. He was charged with three (3) counts namely: 1. Passing in water while the pump was running. 2. Failure to complete G. Com. meeting 3. Failure to do slam. (SLAM - stop, look, and manage) • He was dismissed and his subsequent appeal was disnrissed . CW3 was M/Evans Musonda who also is one of the Complainants. The evidence for CW3 was that he was employed by the Respondents on 9 th February, 2016. On 25 th January, 2017 he reported for work underground at 3435 n'leter level. He stated that 3435 meter level was safe to work and he actually worked. 3510 meter level was flooded and no one worked there. The following day th th was 26 January, 2017. On 26 January, 2017 CW3 was asked to JG nd write a report on how he worked the previous day. On 2 February, 2017 he appeared before the Board of Inquiry. On 15 th February, 2017 he was given a charge letter. He was th dismissed on 16 February, 2017, allegedly, without a hearing. His appeal against dismissal was dismissed. The Respondents called two (2) witnesses. I shall refer to these as RWl and RW2 respectively . RWl was M/Bernard Zuze a Safety Officer for the Respondents. RWl told this court that on 25 th January, 2017 a complaint was received from Mopani Copper Mines Plc who are clients to the Respondents. The Con1plaint was that the employees for the Respondents walked through water where the levels of water were high. Those employees are the within Complainants. A Board of Inquiry for the Respondents was constituted and oral • submissions were received from the affected employees. RW2 was F/Nancy Silubunga Kala a Head of Human Resources for the Respondents. th The evidence by RW2 was that on 25 January, 2017 she received information that the employees for the Respondents omitted G. Com meeting and entered an area which was not safe. Those employees nd are the Complainants herein. A Board of Inquiry was held on 2 February, 2017 attended by all the Complainants herein. J7 The Complainants were found guilty at a subsequent case hearing and were dismissed. Their subsequent appeals were dismissed. Having stated the evidence in this case, I must now consider the relief sought. 1. An order of payment of the Complainants' salary plus perks for • th the month of February, 201 7 worked up to the 16 The Complainants did not lead evidence in support of this clai.In. In short, all Complainants said nothing about this clai.In in their evidence. On the other hand, RW3 stated that all the Complainants were paid what was due to them. Pages 11, 12 and 13 in the Respondents' bundle of documents were produced to prove payment. The claimant must lead evidence to support a claim. It is not enough just to state a claim without alluding to it in evidence. A Plaintiff must prove his claim and if he fails to do so he cannot be entitled to Judgment. The Complainants failed to prove this clain� and it fails on that account. J8 ii. An order that the Complainants' summary dismissal from employment by the Respondent in its respective letters dated 16th February, 2017 which was thereafter upheld in respective th letters dated 17 February, 2017 amounted to unfair and/or wrongful dismissal, null and void and of no legal effect Unfair dismissal arises when an employee is dismissed without a hearing. It is also unfair dismissal if the allegations upon • which an employee is dismissed have not been proved. The Complainants have alleged that they were dismissed without a hearing. RW3 who claimed to have been part of the case hearing committee argued that a hearing was held but no minutes were kept. In her own words she said that at the case hearing the Respondents did not prepare a report regarding proceedings. It is inconceivable that the Respondents could have held a case hearing but failed to keep minutes. There is evidence of the Board of Inquiry, it was documented by the Respondents. There is evidence of charges against the Complainants, it was put in writing by the Respondents. There is evidence of dismissals of the Complainants, letters of dismissals were issued by the Respondents, but as to minutes of the case hearing, RW3 who is Head of Human Resource for the Respondents stated that no record of proceedings was kept. On the above facts, I am satisfied that although the Complainants were charged there was no case hearing. I have looked at the documents regarding the Board of Inquiry. The Board of Inquiry was not a case hearing because it was th constituted to establish only what happened on 25 January, • 2017 and that Board of Inquiry was in fact held before the Complainants were charged with any offence. So, then, that Board of Inquiry was not a case hearing, really, as the name suggests, it was an "Inquiry" to inquire into what happened th underground on 25 January, 2017. To the extent that there was no case hearing, I have found that the dismissals for all the Complainants were unfair. Wrongful dismissal arises when an employer breaches one or more of the contractual terms when dismissing an employee. No such breach was shown by the Complainants. I accordingly order that the three (3) Complainants herein be paid three (3) months salaries each as damage for unfair dismissal at the rate they were on at the time of their dismissal. JlO iii. Order of reinstatement of all the Complainants from the effective date of their alleged summary dismissal The remedy of reinstatement is rarely granted. It is granted jealously and with extreme caution but only where there are compelling reasons to do so. The alternative remedy to the remedy of reinstatement is an award of damages. • I have seen no compelling reasons for me to order reinstatement. Suffice to state that the three (3) Complainants have already herein been awarded damages for unfair dismissal. The claim for reinstatement, therefore, fails. 1v. An order of payment of the Complainants' salaries plus perks and other benefits from the effective date of their alleged summary dismissal to the date of reinstatement This court cannot order payrrient for the period not worked. Kitwe City council v William I have looked at the case of Ng'uni (4) and have been well guided. In that case it was held that it was unlawful to award a salary or pension benefit for a period not worked because such an award has not been earned and might be unjust enrichment. This claim, therefore, fails. Jll v. Damages for breach of contract No breach has been cited by Complainants. It has already been held herein that the dismissal was unfair. Unfair dismissal per se is a breach of contract for which I have already ordered payment. This claim, therefore, boarders on duplicity and is accordingly dismissed on that account. vi. Damages for the manner in which the employment was terminated, the embarrassment endured, inconvenience and mental and physical torture suffered The manner in which the employment was terminated was unfair and I have since ordered payment of damages for unfair dis1nissal. No evidence was led to prove the extent of embarrassment endured, inconvenience and mental and physical torture suffered to warrant payment of damages. This claim, therefore, fails on that account. vii. Exemplary damages No evidence was led to warrant payment of exemplary damages. The clain�, therefore, fails. J12 ,' Vlll. Any other order or award as the court may consider fit in the Jircumstances of the case I I / I have seen no other order or award fit in the circumstances of this case. ix. Interest on all monies found due I have already awarded da1nages for unfair dismissal. I now order interest thereon at the short term deposit rate prevailing from the date of the notice of complaint to the date of Judgment and thereafter at the current Bank of Zambia lending rate until full payment. X Costs of and incidental to the proceedings The Complainants have succeeded only on one claim among their several claims. On those basis, I shall order no costs. Leave to appeal within 30 days from today is granted. th Delivered and signed at Ndola this the 12 day of December, 2017. JUDGE