Pontini and Others v JCHX Construction Limited (COMP 109 of 2014) (23 December 2015) – ZambiaLII

INTHE INDUSTRIAL RELATIONS COURT COMP/109/2014 HOLDENATNDOLA BETWEEN: ALEXPONTINI TEDDYMUNDELA JERCUP SIMUCHIMBA AND JCHX CONSTRUCTION LIMITED RESPONDENT CORAM: HON. JUDGE Dr. W. S. MWENDA - DEPUTY CHAIRPERSON HON. J.M. BWALYA - MEMBER HON. G.M. SAMtiSUN~WA - MEMBER • For the Complainants: In person For the Respondent Mr. A. Imonda ofA.Imonda and Company JUDGMENT Cases referred to: 1. Zambezi Ranching and Cropping Limited v lloyd Chewe Appeal No. 128of 1999 (SC) 2. Attorney General v Richard Jackson Phiri (1988-1989)ZR 121 3. Chimanga Changa v Stephen Chipango Ng'ombe SCZJudgment No. 5 of2010 4. Mary Musole v Borassus Estate Limited IRC/Comp/303/2004 J1 Publications referred to: GwynethPitt, Employment Law- 6"Edition (Thomson Sweet and Maxwell 2007. On 6 November, 2014, Alex Pontini, Teddy Mundela and Jercup Simuchimba hereinafter referred to collectively as "the Complainants", filed a Notice of Complaint against JCRX Construction Limited, the Respondent. The grounds upon which their complaint was presented was that they were unlawfully and wr?pgfully dismissed by the Respondent. In addition, they claiilled defamatiotf ofcharacter. The relief sought by the Complainants were as follows: 1. Compensation for wrongful and unlawful dismissal and being deprived of a livelihood. 2. Compensation for defamation of character and embarrassment suffered. 3. Costs. 4. Interest. 5. Any other relief the Court may deem fit in the circumstances. The Complaint was supported byan Affidavitfiled byAlexPontini wherein he deposed that he was employed as an Artisan Mechanic, Teddy Mundela was employed as an Office Clerk and Jercup Simuchimba was employed as a Normet Operator. J2 • AlexPontini whom we shall herein refer to as the 1" Complainant averred that on 8 August, 2014 they were told to stay away from work so that investigations could be carried out and they did stay away. He said they were shocked to receive letters of dismissal following investigations, on 20September, 2014. According to the 1" Complainant, they only had a hearing after receiving the dismissal letters and that exculpating themselves had no bearing on the decision to dismiss them, which decision had according to him, already been made and that what followedonly served as amere academic . exercise. ., The 1"Complainant averred that the offencewith which they were charged was misappropriation, altering and giving false evidence regarding 450x 50kg cement valued at K31,500. The 1"Complainant deposed that they denied committing the offence and challenged the Respondent to avail them with sufficient evidence as to the acts allegedly committed. The 1"Complainant said that they found it malicious that the Respondent fabricated all these lies against them forno ,~-- reason at all, only to deprive them oftheir livelihoods. The 1" Complainant further deposed that after management read the statement Mundela had made at the Mine Police Station, they forced him to make a statement they wanted to hear. According to him, Mundela was threatened with imprisonment for 30years ifhe did not make a statement they wanted him to make, and under duress he changed his statement to management. The 1" Complainant deposed that at the Human Resource Department Mundela changed his original statement bywhich he stands. The 1" Complainant urged this Court to compel the Respondent to pay them damages and compensation for loss of employment, anguish and humiliation as they care about being looked at as thieves in the compounds where they live, which makes it hard to get employed again because oftheir tarnished names. In rebuttal the Respondent ~pedan Answer on 13November, 2014inwhich it gave its position. on the circunfstances leading to the Complainants' summary dismissal as hereunder:- That on 5September, 2014,the 2"'Complainant Teddy Mundela was given arequisition to draw 100x 50bags ofcement from Stores. That the second Complainant altered the requisition from 100x 50kg bags of cement to 200x 50kg bags of cement. That out of the 200x 500 kg bags of cement collected from Stores only 100x 50kg bags were accounted for and the other 100 x 50 kg bags of cement were taken to the house of the 1" Complainant in Chambishi using a Sino Truck vehicle, where the cement was subsequently sold. On 5 September, 2014 the 2"' Complainant was accompanied by the 3" Complainant Jercup Simuchimba to collect the cement from Stores and worked closely together to deprive the Respondent of 100x 50 kg bags of cement. On 8 September, 2014, the 2"'Complainant was given another requisition to draw 50 x 50 kg bags of cement from Stores. The second Complainant altered the requisition from 50 x 50 kg bags of cement to J4 150x 50kg bags ofcement. Out ofthe 150x 50kg bags of cement collected from Stores, only 50 x50 kg bags were accounted for and the other 100x 50kg bags were taken out to the house of the 1"Complainant in Chambishi using a Sino Truck vehicle where the cement was subsequently sold. During investigations the 2"' Complainant told investigators that he falsified the requisitions whilst working jointly with the 1" and 3" Complainants. That the 2"'Complainant further indicated that the deal was done on three separate occasions and a total of 450 x 50kg bags of .. cement were taken out to the house ofAlexPontini where the cement was sold and proceeds s.hared by all the7Complainants. The 3" Complainant confirmed going with the 2"' Complainant on 5 September, 2014to collect cement. The 1"Complainant confirmed selling cement at his house in Chambeshi delivered by a Sino Truck. Further, that while the average price of cement on the market is between K80and Kl00 the 1"Complainant was selling a 1x 50kg bag of cement at his house at a shocking price of K50only which is below the wholesale price. The Complainants attended a disciplinary hearing and were accorded the right to appeal against dismissal. The Complainants committed offences which attract a penalty ofsummary dismissal and the complaint lacks merit. J5 On 27November, 2014 the Complainants filed an Affidavit in Reply to the Respondent's Answer in which they rebutted the Respondent's allegations. Hearing ofthe matter before this Court took place on 5May,2015,and each ofthe Complainants gave evidence on his own behalf. The first to give evidence on oath was AlexPontini, whom we shall refer to hereinafter as "CW1". CWl testified that he started work in 2003 with NFCAMining as a Mechanic. NFCAis now called JCHX,the Respondent. He said they did not have;,with them the initial contracts which they signed. In 2011the~ signed new co~'tracts which were before Court. Itwas CW1'stestimony that upon signing the 2011contract he worked for JCHX up to 2014. CWl narrated the events that led to his summary dismissal. Most of the evidence was a repeat of what is contained in the Affidavit in Support of Notice ofComplaint. He testified about being apprehended byMine Police and that he denied the charges against him. "- CWl claimed that the requisitions were altered bya Chinese official bythe name of Mr. Yu. He also confirmed having attended a hearing and appealing against the dismissal. He testified that they appealed three times and the third appeal was also not successful and according to him they were given permission to go and appeal elsewhere. He said he went to the Labour Office and later came to this Court. J6 During cross-examination he denied that he was laid off although he accepted that he was charged with offences. When referred to pages 3,4, and 5 of the Respondent's Bundle of Documents which was a statement taken from him, CW! said the signature on the statement was his but that he was forced to sign the document. During further cross-examination CW! confirmed that he attended a disciplinary hearing and that after the hearing he was found guilty and was summarily dismissed. When asked whether he w.as aware that Teddy Mundela also gave a ' statement, CW! saiq he was aware.'~e said he was also aware that Jercup Simuchimba also gave a statement. When referred to the letter of apology which he wrote to two managers in the Respondent Company namely, Messrs Chanda and Chungu in which he wrote asking for forgiveness, CW! said he asked for forgiveness sothat he could get along with the manager and also for things he found which were not alright with him. According to CW! he stays in the same area with the manager and "thelatter would not respond when he greeted him and wherever he met him he would show an angry face. In re-examination CW! reiterated that what he meant in the letter of apology was that he wanted peace between the manager and himself, including everyone in the company. The next witness to testify on his ownbehalf was Teddy Mundela whom we shall hereinafter refer to as "CW2". CW2testified that he was employed in J7 2011 as a helper. He worked for three months and was appointed as a clerk. He said he used to work in the support section but was taken toJack Hammer section in 2012. CW2 averred that he used to draw material that was used underground from Stores. He said if there was no material to collect. he would go and work underground. CW2testified that on 5September, 2014he was given four (04)requisitions by Mr.Yuto get material from NFCA. Mr. Yu signed a requisition for 200 bags ofcement. He collect~~ the cement from NFCAstore and brought it to Jack Hammer seption. On Monclay8 September, 2014 Mr. Yugave him four requisitions. These were for cement (50bags), cable bolts, wire mesh and drilling rods. CW2 testified that Mr. Yu went underground and told him to change the requisitions for cable anchor sets (bolts) to 150. Itwas CW2'sfurther testimony that he mistakenly changed the requisition for cement to 150. He said he took the requisition to JCHXthinking he had done the right thing. CW2went on to testify about what later transpired leading to his dismissal. He talked about how he was later taken to Mine Police after which he was charged, attended a hearing, was consequently dismissed and unsuccessfully appealed against the dismissal. CW2repeated some of the evidence which was already in the Affidavit in Support ofNotice ofComplaint that he was threatened byMine Police that J8 he would be jailed for 30 years if he did not sign the statement that they had prepared and that they forced him to sign it. CW2testified that at the first appeal the administering official did not say anything but just told him to leave the room. According to CW2, the manager, without hearing him, told him to go and see Mr. Chungu. Itwas CW2'stestimony that Mr.Chungu told him about his right to appeal forthe second time which he did and the said appeal was unsuccessful. CW2 averred that Mr. Ch.ungu told him that he had refused to be a ' company witness ~nd hence he ha,'tla right to appeal elsewhere. CW2like CW1also said he went to the Labour Officeand finally came to this Court. Under cross-examination CW2 maintained that he delivered 50 bags of cement to JCHX. He also confirmed that he signed the statement at page 18in the Respondent's Bundle ofDocuments. Under further cross-examination, CW2 confirmed that he attended a hearing. He was referred to page 21 of the Respondent's Bundle of ,- Documents which showed that he did not want the union to represent him and that he went to appeal without a representative from the union. RW2 was further referred to his second appeal exhibited at page 23 of the Respondent's Bundle ofDocuments. Under-re-examination CW2 reiterated what he had said during his examination in chief that he was told by the administering official at the first hearing to leave his office before he could explain anything and that J9 he was asked to appeal to Mr. Chungu where the matter started andwas told that is where it would end. He said he appealed to M. Chungu but before he could say anything he was told to get out because he had told lies at NFCA. According to CW2he told the manager that he had been unfair to him and that is why he came to this Court. The third witness for the Complainants was Jercup Simuchimba, hereinafter referred to as "CW3". CW3testified that he started work in 2011as aJack Hammer Ope.rator . ' CW3gave a detailed account of events leading to his summary dismissal. He repeated some evidence which had been given by CWl and CW2, including the evidence deposed by CWl in the Affidavit in Support of Notice ofComplaint. CW3testified that on 12September 2014he was called by Mr.Chungu, the manager, to his office. He testified how he was asked about 430 bags of cement and later refetred to Mine Police to go and give a statement. He confirmed giving a statement to Mine Police. Likethe other two, CW3also confirmed the case hearing and the unsuccessful appeals. Under cross-examination CW3 was referred to pages 27 to 29 in the Respondent's Bundle of Documents which was the statement he gave to Mine Police. CW3 testified that he made another statement at Human Resource Department and that the statement at Mine Police was the first one. no During further cross-examination, CW3was referred to page 32 and he confirmed that he did not appeal for the second time. This marked the end ofthe Complainants' case. The Respondent called one witness, Detective Inspector Feetman Mwale whom we shall refer to as "RW". He testified that he joined the Respondent in 2009 and he is responsible for interrogating those who commit crimes especially within company premises. He said he is also there tClpreserve the lives <;>mfiners. • RWtestified that he was approached byMr.Sing the man in charge ofJack Hammer and Support sections. Mr.Sing complained that his subordinate, a clerk was tampering with requisitions by changing figures when instructed to collect cement. RW said he advised Mr. Sing to wait and monitor the subordinate in the next requisition. According to RW it took only about three or four days when another requisition of 50 bags of cement was given to Teddy Mundela (CW2). He was sent to collect the cement from NFCA main stores. RW explained to the Court the procedure for collecting cement from the NFCAmain stores. It was RW's testimony that when CW2 came back from collecting the cement the Chinese man (Mr. Sing) was surprised to discover that the figures were changed, instead of 50bags of cement it was changed to 150 bags. J11 RW testified that they informed his boss Mr. Kalando about it and he picked up CW2in the Company ofa Chinese national from Administration OfficeMr. Wang, who wanted to know what was happening because the figures for cement from his section were too much. It was RW's further testimony that on their way to NFCA stores Mr. Mundela excused himself and disappeared only to be seen later coming from NFCAstores. According to RW he had reached there before them and was now coming towards them. . . RW averred that h.e picked up CW2so that he could go to their office so that they could continue with their discussion. Itwas RW's testimony that CW2agreed to have altered the requisition. According to RW,CW2in his statement mentioned the other colleagues. He said he worked with CWl and CW3. RW referred to CW2's statement at pages 14 to 18 of the Respondent's Bundle of Documents. He confirmed that he is the one who recorded the statement and that the same was read to CW2 before he signed it. RW also confirmed that he got statements from CWl and CW3 which statements he said were at pages 3 to 5 and 27 to 29 respectively, in the Respondent's Bundle ofDocuments. RW averred that in CW3's statement he admitted to have helped CW2 deliver cement to his section by using a fork lifter. H2 RWfurther referred to a statement ofMr.Sing which was at page 40ofthe Respondent's Bundle of Documents. RW testified that after getting the statements they found that there was overwhelming evidence and they decided to charge the Complainants in accordance with the Disciplinary CodeofConduct. During cross-examination RWreiterated that they got the requisitions and discovered that the figure one (1)was added to one ofthe requisitions for cement. RWtestified during furth~l' cross-examination that the Respondent paid for 150bags of cerp.ent although o~ly 50bags reached JCHX. This was so because the documentation showed that 150bags had been collected by CW2from NFCAstores. Asked whether he had seen the Sino trucks, RW testified that even CWl himself confirmed in his statement that a Sino truck took cement to his home. He said that the Sino truck is black and white. RWaverred further during cross-examination that the Complainants took advantage ofthe porous boom which was usually left open to transport the cement out of the plant. He said the driver of the truck knew the weak points which were not manned and drove through those. Asked about the CCTV,RWsaid the television cameras were not clear. He said they seemed to have been tampered with and were showing black and white pictures. J13 In further cross-examination RWreiterated that CW2admitted that it was him who altered the figures in the requisition. CW2did not dispute this statement when he was cross-examined. RWwent on to say that the figure one (1)was later deleted from the requisition when they reached NFCA after CW2had gone ahead ofthem. However the person who deleted the one forgot to indicate the remaining balance. According to RW,CW2in his statement admitted that he was at fault. This marked the end ofthe Respondent's case. At the close of the case .t,he Complainants undertook to file written . submissions but Counsel for the Rtspondent indicated that he would rely . onthe oral and written evidence available before the Court. We have since received the submissions from the Complainants for which we are appreciative. The undisputed facts as they emerge from the record are as follows: 1. The Complainants were employed by the Respondent at different times and held different posts. 2. Following an anomaly on a requisition concerning bags of cement investigations were conducted and disciplinary proceedings were instituted against the Complainants. 3. Statements were taken from the Complainants and Mr. Sing. 4. The Complainants were charged with the offences of misappropriation under clause 3.4.5,falsifying and altering under clause 3.4.3 and giving false evidence under clause 3.4.2 of the Respondent's Disciplinary Code. J14 - , 5. On 18September, 2014the Complainants were summarily dismissed and informed about their right to appeal against the decision. 6. The Complainants did appeal against their dismissals but the said appeals were unsuccessful. The question for determination by this Court is whether or not the Complainants were unlawfully and wrongfully dismissed as they claim in their Notice of Complaint. The answer to this question will determine whether the Complainants are entitled to the relief sought or not. We have carefully analysfiJdthe evidence on record. We have taken into consideration the.heart of the m~ndate ofthe Industrial Relations Court which is to do substantial justice, which we must hasten to point out, must ensue for both parties. In addition, we caution ourselves that the burden of proof is on the Complainants to prove their case against the Respondent. It is our view that the Complainants have not discharged the burden of proof. On the contrary the Respondent has shown that the Complainants were properly dismissed for their dishonest conduct. Weare fortified in our finding bythe Supreme Court Judgment in Zambezi Ranching and Cropping Limited v Lloyd Chewe (1) where Ngulube CJ stated: TheIRC misdireoted themselves when they glossed over the wrong doing by the Complainant thereby ooming to a oonolusion on a view of thefaots and the evidenoe whioh oould not reasonably beentertained. J15 In this case we do not want to gloss over the Complainants' wrong doing. Further, in the case of Attorney-General v Richard Jackson Phiri (2)the Supreme Court held that where disciplinary action is taken by a company the duty ofthe Court is to examine ifthere was the necessary disciplinary power and if it was exercised in due form. The Supreme Court went on to state further that: Once the correct procedures have been followed the only question for consideration of the court- - - would be whether there were facts established to support the disciplinazy measures since it is obvious that anyexeroise ofpowers Will ber,garded asbadif theTeis no substratum of fact toSUPPOTtht e same---. In another case, Chimanga Changa Limited v Stephen Chipango Nyambe (3)the Supreme Court held that: an employer doesnot have topTovethat an offence took place 01' satisfy himself beyondTeasonabledoubt that the employee committed the actin question. His function is toactreasonablyin coming toa decision. We are of the view that the Respondent acted reasonably in coming to a '- decision to summarily dismiss the Complainants on the basis of the available evidence, Further, we stand by our decision in the case of Mary Musole v Borassus Estates Limited (4)in which we stated as follows: ••We have not been requested to decide the Complainants guilt 01' othelwise regarding the alleged theft from the Respondent. OUTsole J16 " ." funotion is to detennine whether or not the Complainant was unlawfully dismissed as olaimed- --. In the instant case, it is our considered view that the Complainants were not unlawfully dismissed. Gwyneth Pitt, the author of Employment Law (Sixth Edition) at page 216 has stated that there are two conditions to be fulfilled for a successful action for wrongful dismissal: firstly, that the employer terminated the contract without notice or with inadequate notice, and secondly, that the employer was not justified in doing so. •.... • Further at page 218 discussing justified summary dismIssal, the same author says even ifthe employer terminates the contract with no notice or with inadequate notice, the employee will not be able to claim wrongful dismissal ifthe employer is justified in summarily dismissing him or her. She asks a very important question that is, "when is summary dismissal justified?" and answers as follows:"Ifthe employee has committed an act ofgross misconduct." The author goes on further and states that generally speaking, things like disobedience, dishonesty and violence are regarded as gross misconduct. In the case in casu, the Respondent has shown that the Complainants were charged in accordance with the company's disciplinary code. Theywere given the opportunity to be heard in their defence, although they claim that this was an academic exercise. It is therefore, our considered view that the claim ofwrongful or unlawful dismissal cannot be sustained. J17 .- There is evidence to support the charges and dismissals of the Complainants. In their statements they admitted wrong doing. In our opinion there is overwhelming evidence against them. On the facts and evidence before us and going by the Supreme Court decisions in the cases cited herein, we find and hold that the Complainants were properly dismissed and are not entitled to any ofthe relief sought. We find no merit in the complaint and we dismiss it accordingly . . '; Wemake no orde~as to costs. Delivered and signed at Ndola this 23"'day December, 2015 /k!~ll~~~,-- Judge (Dr)W.S.Mwenda DEPUTYCEUURPERSON ----.--_._-===.::.~- I---~- 'RI'f . ' - U - B +, L •• IC or- ZMIII.ll'" I .JUDICIARV . DEPUTY CH.\IRP[I,~;ON 1,..f\.MI~I.Il. r'-~"~'''''''"-~'''''~'''--''I-''''- ~ J.M.Bwalya ~.?A'" I' G\ usungwa I MEMB R MEMBER .•r ."'" • -~'-'-:-.--'~- . INOUSTRI~,Lm:l..f.1 !O[-.l~,COURT t. i P.().EOX [U'IGG,i\!DO:_i\ "<--~-..,,,_.,_.-."..'...,__ •, J18