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Evidence – Legal and evidential burden of proof – Plaintiff required to prove his case in order to obtain judgment in his favour
Employment – Employers entitled to expect acceptable conduct and satisfactory performance from employees
Civil procedure – Judgment to be delivered within reasonable time – Where delay manifests, parties to receive an apology and explanation
On 24 June 2004, the Respondent had commenced an action by writ of summons against the Appellant claiming for a declaration that the termination of his services was wrongful, illegal, and null and void; damages for wrongful and illegal termination of employment; interest and costs. In his statement of claim which lacked material particulars, the Respondent only pleaded that the termination of services had no basis and so it was wrongful, illegal and null and void. The Appellant proceeded to file its defence, averring that the dismissal was justified as the Respondent had been found guilty of failing to report an accident with a company vehicle, which amounted to misconduct.
The learned trial judge found that the Appellant had not, in terms of its defence and the authorities he had referred to in his judgment, proved that it had power under the Respondent’s conditions of service, to summarily dismiss him from employment for misconduct. Based on the Appellant’s admission that it summarily dismissed the Respondent from employment, the judge found that the Respondent had, on the balance of probabilities, proved his case against the Appellant and was entitled to damages for wrongful dismissal. The judge awarded the Respondent 12 months’ salary and all the perquisites as compensation over and above his contractual terminal benefits together with interests and costs.
The Appellant appealed. One of the grounds of appeal was that the award of interest at short term deposit rate from date of writ to date of judgment was erroneous as it included the time taken for delivery of judgment.
1. Where a plaintiff alleges that he has been wrongfully or unfairly dismissed, as indeed in any other case where he makes any allegations, it is generally for him to prove those allegations and a plaintiff who has failed to prove his case cannot be entitled to judgment, whatever may be said of the opponent’s case. Since the Respondent alleged that his dismissal from employment was wrongful, the legal and evidential burden rested on him to prove that allegation on the balance of probabilities. The Respondent had the onus to produce in evidence his conditions of service, including the disciplinary code to satisfy the court that the Appellant lacked the necessary power under the disciplinary code of conduct to dismiss him for misconduct and that if it had that power, the power was not validly exercised. At no time did the Respondent allege that the Appellant did not adhere to the provisions of his contract of service or the disciplinary code or that the rules of natural justice were not observed or complied with. Though no specific provisions of the disciplinary code were cited in the charge form or the summary dismissal letter, the Respondent was briefed as to the charges against him and a copy of the charge form was given to him, a fact which he confirmed by signing at page 47 of the record of appeal. Further, there was no assertion in the Respondent’s pleadings or evidence that the dismissal was wrongful because under the disciplinary code, summary dismissal was not the appropriate sanction for misconduct. Khalid Mohamed v The Attorney-General (1982) ZR 49 and Wilson Masauso Zulu v Avondale Housing Project Limited (1982) ZR 172 followed.
2. Whilst it is trite that employees have a right not to be treated unfairly or be dismissed unfairly, employers also have a right to expect acceptable conduct and satisfactory performance by company employees, especially senior managers. Admittedly, the Respondent did not follow the company policy and procedures on the handling of road traffic accidents. Initially, he had asserted that the charge of misconduct was misconceived as it alleged that he repaired the motor vehicle without authority of the company. However, he later admitted having repaired the vehicle without authority that resulted in the charge of misconduct and he asked for pardon over the case. This kind of misconduct can become a serious problem if it is not managed properly and fairly at the workplace. The concept of wrongful dismissal is essentially procedural and is largely dependent upon the actual terms of the contract in question. An employer has a legal right to summarily dismiss an employee without notice for serious misconduct or other conduct which justifies such dismissal. Chimanga Changa Limited v Stephen Chipango Ngombe (2010) 1 ZR 208 followed.
3. There was a delay of eight years from the date the trial closed on 14 May 2007 to the date the judgment was delivered on 23 February 2015. There was no explanation for this long delay, no apology recorded and nothing complex about the matter. Had this appeal failed, the Appellant would have paid a lot of money in interest for a total period of 11 years. The saying goes that judgment delayed is justice denied. Although there is no statutory rule that a judgment must be delivered within a specified time, judgment has to be delivered “within a reasonable time” and what is reasonable may vary according to the complexity of the legal issues, the volume and nature of the evidence and other matters and where delay occurs, the litigants should receive an apology and, if possible, an explanation. Bond v Dunster Properties Limited (2011) EWCA Civ 455 approved.