The plaintiff has applied to this court for a declaration to the effect that the dismissal by the defendant be declared null and void and that he in fact be reinstated from 31st July, 1978, the date of its purported effect. The plaintiff has further prayed for an injunction restraining the defendants, their officers or agents from acting upon the decision of
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the termination of his employment and has therefore prayed for a reinstatement from the said date of purported termination. The action was commenced by taking out originating summons dated 20th October, 1978. The matter first came before Judge Hadden on 29th January, 1979; Judge Hadden made an order that the defendant should file an Affidavit in opposition within twenty-one days and fixed 19th and 25th January, 1979, as dates of hearing in open court. The matter was not held before Judge Hadden, instead the matter was transferred to me. A date was fixed for hearing and the parties were duly informed. The matter came before me in open court on 19th July, 1979. There was no appearance on the part of the defendants. The matter was adjourned to allow the defendants to come and give an explanation as to why they did not appear on the 19th July, 1979. On 25th July, 1979, Mr Nawa, Personnel and Training Officer, appeared on behalf of the defendants. He informed the court that they wanted the matter to be adjourned further in order to give the defendants time to look for solicitors. The court gave them an adjournment of six days. On 30th July, 1979, the matter came up in an open court and there was no appearance on the part of the defendants. The matter therefore proceeded in the absence of the defendants. The plaintiff has filed an Affidavit in support of his case. In addition he has given evidence on oath. The facts are that the plaintiff was employed by the defendants. He was employed under the terms contained in the Collective Agreement, a copy of which was exhibited to his Affidavit. He has been in the employment with the defendant company for fifteen years without breaking service or bad record. On 3rd August, 1978, the plaintiff and two other employees of the defendant company namely Lewis Mwaanga and Abilon Chankunga were suspended on the alleged grounds of missing stocks and money. The allegation was reported to Zambia Police. The Police arrested the plaintiff together with other persons on 3rdAugust, 1978. On the 4th August, 1978, the Police released the plaintiff and wrote a letter to the defendants which read:
I refer to the above case, which was reported to Police on 1st August, 1978, involving the above mentioned. I have to inform you that both accused were arrested for this offence, and it has been found that at present moment we have got no sufficient evidence against Mr. Yona Banda but his friend Lewis Mwaanga will appear on 11th August, 1978 for plea. You will be advised the final result of our enquiries in due course.
On 8th August, 1978, the defendants wrote to the plaintiff and informed him that they had received a letter from the Zambia Police which stated that it had been found that there was no sufficient evidence against him, but the letter went:
But owing to the allegations by Mr Lewis Mwaanga, please be advised that you are still under suspension without pay until further notice.
On 23rd August, 1978, the defendants wrote to the plaintiff. The letter read:
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Up until 31st July, 1978, you were among other relevant duties, responsible for proper custody of van sales stocks - issuing and inventory control. A loss of K6572.13 in stocks has since been discovered missing from van sales. For such performance, which is equivalent to sabotaging company property under Section 28.1.10 of the current Collective Agreement I regret to inform you that your employment with National Drug Company hereto comes to an end with effect from 31st July, 1978. I enclose your Certificate of service and P13. Your terminal benefits have been confiscated towards recovery of the lost money. Yours sincerely.
In his evidence, the plaintiff has further informed the court that in 1978 he was a supervisor of the Van Sales Section. Two salesmen stole money, but because of him being a supervisor in that section, the defendants decided to dismiss him. He mentioned the names of the two salesmen as being Abilon Chankunga and Lewis Mwaanga. These two men were prosecuted. One was acquitted. Lewis Mwaanga was convicted and jailed for six months. He further informed the court that before he was dismissed, he was placed on suspension. He told the court that when he was employed by the defendants he had entered into the Collective Agreement with them. He referred the court to s. 28 of the Collective Agreement, which speaks of offences warranting dismissals. He did not illegally damage any property of the company. He further informed the court that s. 28.2.4 deals with offences to be dealt with by issue of warnings. He was not given any warning of negligence at work, and has never caused any damage of the company's property. He stated that he was being blamed or being held responsible for the offences the two people committed. In fact one of the people has been prosecuted and jailed for the offence. He further informed the court that to his knowledge, the defendants did not get permission from the Labour Office to dismiss him. He does not agree with the dismissal and that is why he decided to come to court and ask declaration. Since the defendants decided not to appear, the court is only left with one story. The defendants were given ample opportunity to file the affidavit but for reasons best known to themselves, they kept quiet. When the matter came up for hearing, they again decided to stay away. The court will therefore proceed on the evidence of the plaintiff alone. The plaintiff's employment is regulated by the Collective Agreement entered into between the defendants and the Union on behalf of the employees of the company. Section 28.1 of the Collective Agreement entered into between the defendant and the Union on behalf of the employees of the company. Section 28.1 of the Agreement deals with offences warranting a dismissal or discharge. The section reads:
Five days absence without reasonable cause either consecutive or non-consecutive within any one calendar month bearing in mind that three late comings within the same period equal one day's absence for this purpose.
Being drunk at work as witnessed by a supervisor and two work- mates.Forgery as proved by a court of law.
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Theft or leaving the premises in any way with belongings of the Company even if these belongings are empty drums, wooden pieces or any other refuse without properly signed note by authorised Company Official.
Being convicted by law judgment to a criminal charge.
Assault to a fellow worker.Being involved in a riot either within premises of the Company or vicinity.Stoning Company belongings, or any member of the company staff or any car inside company premises.
Smoking in restricted areas.Illegally damaging or sabotaging Company property, machines or other equipment.Having received three warnings within twelve months. Sleeping at work and as testified by two eye witnesses.
Section 28.2 of the Agreement deals with offences to be treated by issue of warnings:
In case of serious offences warnings issued shall be coupled with suspensions without pay.Unwillingness to follow legitimate instructions. Refusal to execute a determined task. Abandonment of work post without permission. Negligence of work. Wilful lack of efficiency at work. Disturbing other fellow workers (vulgar speech and horseplay). Being found in another department without justification. Reading newspaper during working hours. Absence for less than three days within any one calendar month. Three late comings of ten minutes and above within any one calendar month. Notorious insulting or threatening a supervisor.
Misconduct and Insubordination.
The plaintiff was informed by letter written to him on the 23rd August, 1978, that he was being dismissed for performance which is equivalent to sabotaging company property under s. 28.1.10. It is interesting to note that the defendants used the words equivalent to sabotaging. To me it appears that the defendants themselves were not sure whether the offence allegedly committed by the plaintiff fell under s. 28.1. From the facts of the case, it is quite clear that something went wrong in the plaintiff's section. The matter was reported to the Police, the Police cleared the plaintiff. Two of the employees in the section were prosecuted for theft and one of them by the name of Lewis Mwaanga was convicted and jailed. It was reported that Mr Mwaanga made serious allegations against his supervisor and the defendants relied on these allegations to dismiss the plaintiff. I must mention here that the allegations were not even mentioned to the plaintiff. It would have been fair and just for the defendants to intimate the nature of allegations Mr Mwaanga had made against the plaintiff; and common sense would have expected the defendants to give
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an opportunity to the plaintiff to answer these allegations. To the defendants this was not found necessary. In my view from the facts of the case, it is quite clear that the plaintiff must have been guilty of some negligence in his section and this clearly fell under s. 28.2 of the Collective Agreement. This would have meant that the plaintiff was going to be issued with the warning but instead, the defendants decided to proceed under s. 28.1. Section 28.1.10 reads:
Illegally damaging or sabotaging Company property machines or other equipment.
There is ample evidence that two people were prosecuted for theft and that there was no evidence against the plaintiff in respect of theft charges. How could he then be regarded as having damaged or sabotaged company property? He might have been negligent in not supervising his juniors properly but that is another issue. I am therefore satisfied that the defendants wrongly used s. 28.1.10 in dismissing the plaintiff from his employment. Mr A. Nyangulu, counsel for the plaintiff, has drawn the attention of the court to the provisions of Employment (Special Provisions) Act, Cap. 515 of the Laws of Zambia,. The preamble to the Act provides:
An act to make special provisions with respect to employment during any period when a declaration under section 29 of the Constitution in force; and to provide for matter incidental thereto.
Section 29 of the old Constitution is similar to Art. 30 (1) of the present constitution which reads:
The President may at any time by proclamation published in the Gazette declare that:
(a)a state of public emergency exists or;
(b)a situation exists which, if allowed to continue may lead to a state of public emergency.
Zambia has been under state of emergency since July, 1964. The provisions of Cap. 515 would therefore apply. Section 2 of Cap. 515 defines an employee as follows:
An employee means, any person who has entered into or works under a contract of service, whether the contract is express or implied, is oral or in writing, and whether the remuneration is calculated by time or by work done, or is in cash or in kind.
Section 3 of the Act provides:
The President may, by statutory instrument, make such regulations as appear to him to be necessary or expedient of employees and for regulating the conditions of service of employees whose continued employment is secured by virtue of the regulations.
The same section empowers the President to make provisions for:
Prohibiting the dismissal or the termination in any other manner of the employment of employees, whether or not previous notice of such dismissal or termination has been given to the employees.
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The President, acting in accordance with Section 4 issued Statutory Instrument No. 135 of 1975.
Regulations 3 of the Employment (Special Provisions) Act of Regulations 1975 deals with application and regulation.Regulation 4 deals with dismissal and termination of employment:
' No person shall dismiss or otherwise terminate the employment of any employee, irrespective of whether previous notice of such dismissal or termination has been given to the employee or not, unless -
(a)Approval of the proper officer in writing has been given to such dismissal or termination; or
(b)The employee is dismissed on the grounds of wilful disobedience, misconduct, neglect or incompetence.'
At Common Law a master is not bound to hear his servant before he dismisses him. He can act unreasonably or capriciously if he so wishes but the dismissal is valid. A servant has no remedy unless the dismissal is in breach of contract and then the servant's only remedy is damages for breach of contract. The common law can however be modified by an Act of Parliament or any other statutory provision. The Employment (Special Provisions) Act has provided that:
No person shall dismiss or otherwise terminate the employment of any employee, irrespective of whether previous notice of such dismissal or termination has been given to the employee or not, unless-
(a)approval of the proper officer in writing has been given to such dismissal or termination; or
(b)the employee is dismissed on the grounds of wilful disobedience, misconduct, neglect or incompetence and -
(i)the person by whom the employee is dismissed would but for the provisions of these Regulations, have been entitled to dismiss the employee on such grounds summarily and without due notice or the payment of wages in lieu of notice; and
(ii)the person by whom the employee is dismissed notifies the proper officer forthwith of the fact of such dismissal and the circumstances concerning it;
(c)in the case of an employee who was engaged for a period of fixed duration or for the performance of a specific task, the employment is terminated on the expiry of such period or, as the case may be, on the performance of such task.
It follows therefore that although at common law a master can dismiss a servant anyhow, but under the provisions of Employment (Special Provisions) Act, a master is bound to follow certain procedures before he exercises his right of dismissal.
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In my opinion the plaintiff comes under an ambit of this Act. There is no evidence before me to show that the plaintiff was guilty of any of the offences mentioned in regulation 4 of the Regulations. There is no evidence that permission was given for termination before the plaintiff was dismissed. The Act is there to protect the employees and it is the duty of the courts to make sure that the employers follow the law as laid down by the Acts of Parliament. I am satisfied that the Provisions in the Employment (Special Provisions) Act were not complied with. I am satisfied that this is a case where a declaration should be granted. The dismissal by the defendant of the plaintiff was contrary to the provisions of the law and I am therefore satisfied that the purported dismissal was a nullity in that it was contrary to the provisions of the Employment (Special Provisions) Act, Cap. 515 of the Laws of Zambia. The dismissal therefore in Law has no validity and that in fact the plaintiff should therefore be reinstated in his employment.
The plaintiff was on suspension for about a month from 31st July' 1978, to 23rd August, 1978. In the case of Tasonomo v The Credit Organisation of Zambia (1) Doyle, C.J., was faced with a question of whether the servant was entitled to salary during the period of suspension. He came to the conclusion that the servant is not entitled to salary whilst on suspension. I agree with the decision by Doyle, C.J., in that case. I hold therefore that no sum of money is due to the plaintiff, in respect of the period of suspension. The defendants shall bear costs of this application.