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In 1995, the Appellant was employed by the Respondent as Project Manager for the Children in Distress Project. He rose through the ranks to the position of Executive Director. For present purposes his relevant contract was with effect from 1 April 2007 to 31 March, 2010. He was to receive, on a monthly basis, US$ 4 900 salary, US$ 200 for talk time, US$ 1 000 allowance from the Gift in Kind Project and ZMW 800 fuel allowance. On 28 August, 2009, the Appellant received a letter of suspension from Dr Roger Chongwe, one of the Board Members of the Respondent. The letter stated that the decision to suspend the Appellant was taken in order to facilitate impartial and independent investigations by the Drug Enforcement Commission (the “DEC”), into the financial transactions of the Respondent. After his suspension, the Appellant was arrested and he began appearing in court facing charges of theft by servant and money laundering. During the period of his suspension, he did not receive his salary and allowances. The suspension continued until 31 March 2010, when his contract came to an end, by effluxion of time. As a result of the above events, on 24 June 2010, the Appellant took out a complaint in the Industrial Relations Court (the “IRC”), for payment of all allowances and salaries due in arrears; 25% gratuity under the terms of the employment contract; damages for wrongful withholding of his salary and allowances and leave days. After hearing the matter, the IRC was of the view that the Appellant was entitled to half salary during the period of his suspension. The Court stated that the payment of his other half salary would depend on the outcome of the criminal prosecution that was in Court. The lower Court refused to order payment of his allowances or of gratuity on the ground that the pending matter in the Subordinate Court may have an effect on these. The claim for leave days succeeded while that for damages for wrongful withholding of salary failed. The Appellant appealed.
On appeal, the gist of the Appellant's argument was that the trial Court erred in law and fact, when it declined to order payment of gratuity to the Appellant, on account of a pending criminal matter in the Subordinate Court, involving the Appellant. The Supreme Court noted that from the evidence on record, the Appellant was suspended solely on the basis of investigations by DEC. The Respondent did not carry out its own investigations on the allegations of financial mismanagement, upon which the Appellant was later charged, arrested and prosecuted. The Respondent never administratively charged him over these allegations. During the hearing of the appeal, a question was posed to the Appellant’s counsel, to which he replied that on 17 April 2015, after this case was heard and determined by the trial Court, the Appellant was acquitted of the charges of theft by servant and money laundering. The Supreme Court took judicial notice of the relevant certificate of acquittal and found it necessary or expedient to order that the certificate of acquittal be produced as further evidence in the interest of justice, pursuant to Rule 25 (1) (b) of the Zambian Supreme Court Rules, 1975. The Supreme Court further observed that under Clause 5 (f) of the Appellant's contract of service, the Respondent had the right to summarily terminate the contract of service, without liability for compensation or damages, if the Appellant was convicted of any criminal offence other than an offence which in the reasonable opinion of the Respondent, did not affect his position as Director of the Trust.
1. If the Appellant was eventually convicted of theft by servant and money laundering, the Respondent would have been entitled to instantly terminate his contract of service, with effect from the date of his suspension. In that case, he would not have been entitled to payment of gratuity for the two years he was on suspension. Consequently, the settled principle that the result of a criminal trial cannot be referred to as proof of a fact which must be established in a civil court; whether the criminal trial resulted in a conviction or an acquittal does not apply to this case. Applying it, would have meant barring production of the certificate of acquittal, which shows that the Appellant was innocent of the charges of theft by public servant and money laundering. Non-production of this certificate would have occasioned injustice to the Appellant because it is the only way his innocence could be proved, given the fact that the Respondent never laid administrative charges against him over alleged misuse or misappropriation of its money. Most importantly, this case was heard by the Industrial Relations Court, a Court of substantial justice, which is not bound by technical Rules of evidence. This case involves application of specific conditions of service on suspension of an employee. Kabwe Transport Company Limited v Press Transport (1975 Limited) (1984) ZR 43, Annard Chibuye v Zambia Airways Corporation Limited (1985) ZR 4, Zambia Bata Shoe Company Ltd v Mtambalika (2010) 2 ZR 244 distinguished.
2. The principle of compensation states that damages is the sum of money which will put the party who has been injured or suffered, in the same position as he would have been in, if he had not sustained the wrong for which he is now getting his compensation or reparation. In the present case, had the Appellant not been suspended, he would have been paid up to the end of his contract, the following US$ 4 900 as monthly salary, US$ 200 as monthly talk time, US$ 1 000 per month as an allowance from the Gift in Kind Project and ZMW 800 monthly fuel allowance. The Appellant should be paid all the above plus gratuity.