COURT OF JUSTICE
IN THE COURT OF JUSTICE OF THE COMMON MARKET FOR
EASTERN AND SOUTHERN AFRICA FIRST INSTANCE DIVISION
AT LUSAKA, ZAMBIA
Coram: S. Rugege, Lord Principal Judge; A. Nyankiye, J. M. ,Ogooia, M. Tadesse, L. Malaba, LJJ
Registrar: Nyambura L. Mbatia
REFERENCE NO. 1 of 2013
COLLINS HWALIMA DUBE APPLICANT
COMMON MARKET FOR EASTERN AND SOUTHERN AFRICA RESPONDENT
For the Applicant: Mr. Isaiah Chifumbe Ng'onga of Messrs l.c. Ng'onga & Company, Agent for the Applicant.
For the Respondent: Mr. Gabriel Masuku, Agent for the Respondent.
JUDGMENT OF THE COURt
l. The Background:
1. This is a Reference filed by a former COMESA staff member ("the Applicant") against his former Employer, COMESA (the "Employer" or "Respondent") The Applicant was aggrieved by the decision of the Secretary General to discharge him from the service of COMESA through summary dismissal. The dismissal was stated to be on allegations of his involvement in the forgery of a COMESA Note Verbale.
II. The Facts:
2. The Applicant was an Employee of COMESA, employed for four years as a chauffer. By the Secretary General's letter of 30th September, 2009 (Annex 4 to the Reference), the Applicant's Contract of Employment was renewed in his position of Chauffer, assigned to work for the Assistant Secretary General (Administration and Finance), in the General Service Category, at level GS5. On 2nd October 2009, the Applicant duly accepted the terms of his renewed contract by signing the duplicate of that contract, and returning the same to the COMESA Administration.
3. On 2nd November, 2010, the Secretary General summarily dismissed the Applicant "with immediate effect". In his Summary Dismissal letter of that date (Annex 6 to the Reference), the Secretary General stated that:
"Following receipt of the Police report involving the forgery of COMESA Note Verbale to Finland Mission in which you were involved and charges have been preferred against you in accordance with Rule 71 as read with Rule 65(b) and 67(b) Of the COMESA Staff Rules and Regulations, I hereby summarily dismiss you from the service of COMESA with immediate effect.
4. On 29th November, 2010, the Applicant recorded a warn and caution statement at the Police Station in which he denied either knowledge of, or involvement in the alleged forgery of the Note Verbale. Subsequently, the Police turned him into a State witness against Patrick Nyirenda and Kabika Akakondo, the principal suspects in the forgery. On 16th November, 2010, Mr. Akakondo wrote a letter (Annex 2 of the Reference to Applicant's Replies to Respondent's Replies and Defence) to the Secretary General stating that the Applicant was not involved in the forgery.
5.. By letter of 18th November, 2010 (Annex 9 of the Reference), the Applicant appealed to the Secretary General to consider reinstating him at COMESA given that he had denied involvement in the forgery and that Mr Akakondo had confirmed this in his warn and caution statement.
6. The Secretary General responded on 29 November, 2010 (Annex 10 of the Reference) in a letter dismissing the appeal.
7. On 18th January 2013, the Applicant wrote to the Secretary General requesting a review of his summary dismissal (Annex 11 of the Reference) There being no response from the Secretary General, the Applicant sent a reminder on 4th March 2013 whereupon on 18th March 2013 (Annex 13 of the Reference), the Secretary General replied informing him that he was not in a position to deal with the matter any longer and that the Applicant be at liberty to proceed to the COMESA Court to make his case.
8. The Applicant then filed the instant Reference in which he contended that his summary dismissal was unfair, erroneous, unlawful and malicious.
9. On the basis of the above contentions, the Applicant sought the following Orders:
- "That the Applicant's summary dismissal was wrongful and unlawful as commission of forgery was not established before summary dismissal was meted and that by virtue of Article 27 of the COMESA Treaty the Coutt should invalidate the summary dismissal.
- That the Applicant be reinstated to his original position in the Respondent as Driver.
- That the Applicant be paid al/ salaries and allowances due and other benefits from the date of summary dismissal to the date of reinstatement.
- That the Applicant be awarded damages for mental torture arising from wrongful/unlawful dismissal.
- That the Respondent do further bear the costs of al/ proceedings before [this] Court.
II. The Proceedings Before this Court:
10. On 27th March 2013, the Applicant applied for a Certificate of Urgency for the Court to hear the matter expeditiously. This was in an attempt to avoid the litigation expenses that would be occasioned to the Applicant due to this Court's then imminent relocation from its temporary seat in Lusaka, Zambia, to its permanent home in Khartoum, Sudan.
11. The Applicant's Urgency Application was denied. The Applicant then applied for a stay of the proceedings until he could raise the necessary funds to continue the case. This was granted and the case adjourned sine die. The Respondent then lodged a Preliminary Application in which it claimed that the Reference was time-barred, and that the matter raised in the Reference was sub judice before the Zambian courts, and was an abuse of court process.
12. In an Order delivered in Khartoum on 17th September 2014, the Respondent's Application was dismissed. The Court reserved for a later date, the detailed reasons for its Order. Those reasons are provided in the following sections Of this Judgment.
i. Whether the Reference was time-barred
13. Learned Counsel for the Respondent raised the issue that the Reference was time-barred under Rule 76 of the Staff Rules and Regulations, on account of the Applicant's inordinate delay of 2.5 years. In this regard, while it is true that the letter of the Applicant's Summary Dismissal was dated 2nd November 2010, the Applicant and the Respondent continued to engage each other in communications which kept the matter alive until 18th March 2013, when the Secretary General finally advised the Applicant as follows:
"Having carefully considered the matter and the fact that the decision to turn you into a state witness... was taken by the law enforcement authorities of the Republic of Zambia, I regret to inform you that I am not in a position to deal with this matter any longer and that you be at liberty to proceed to the COMESA Court of Justice to make your case. [Emphasis added].
14. That advice was the trigger for the dispute to come to the Court. With the finality of the Secretary General's letter of 18th March 2013, the matter was ripe for the Court's attention. Thus, the time for filing the Reference started to run from that date: 18th March 2013. Accordingly, the Applicant's deadline to file the Reference within 3 months (under Rule 75.1) would not run out until 18th June 2013. By filing his Reference on 27th March 2013, the Applicant was well within the prescribed time. In any case, the deadlines stipulated in Rule 76, on the other hand, are pegged on the completion of the "decision of an Administrative Appeals Panel". These deadlines are inapplicable in the instant case, in as much as there was no Administrative Appeals Panel established. But even if Rule 76 were held to apply, then the Applicant would have had even a longer deadline within which to file the Reference—namely one year under Rule 76 instead of "three months" under Rule 75.1.
Accordingly, the Court finds that there was no delay in filing the Reference. There was no time-bar.
ii. Whether the matter was Sub judice
15. As earlier indicated, part of the Respondent's arguments in the Preliminary Application was that the matter raised in the Reference was sub judice before the Zambian courts, and was an abuse of court process. However, the Court observed that case that was pending before the Zambian court at that time was a criminal matter in which the Applicant was not an accused person but a witness. Whereas the present matter before this Court is an administrative matter relating to dismissal. The Court found, therefore, that the matter was neither sub judice nor an abuse of process.
Issues For Determination Of the Court in the Reference
The considers the following to be the substantive issues between the Parties that require its determination:
- Whether a "dispute" within the meaning of Article 27 of the COMESA Treaty has arisen between the Applicant and the Respondent.
- Whether the Secretary General had a just just cause warranting his decision for summary dismissal of the Applicant.
- Whether the Secretary General in exercising his power of summary dismissal, complied with a fair procedure.
- Whether the Parties are entitled to the respective reliefs sought
A. Whether there was a dispute between the Applicant and the Respondent.
16. In both his pleadings and oral submissions, the Respondent contended that the Applicant failed or omitted to show that there was "a dispute" between the Applicant and the Respondent.
17. For his part the Applicant drew the Court's attention to Article 27 of the COMESA Treaty as the basis for disputes between the Common Market and its employees that arise out Of the application and interpretation of the Staff Rules and Regulations of the Secretariat or of the terms and conditions of employment of the employees of the Common Market.
The Court's Analysis of the Issue
18. There was indeed, a dispute between the two Parties. An employee was summarily dismissed by his employer. The employee was aggrieved by the decision of his employer. In his Reference (Paragraph 13), the Employee contended that:
''...the Applicant's summary dismissal.. was unfair, erroneous, unlawful and malicious"
19. There can be no doubt that the Parties were embroiled in a dispute. The divergent positions of the two Parties - show the existence of a "dispute" as envisaged in the clear wording of Article 27(1) of the COMESA Treaty namely:
"The Court shall have jurisdiction to hear disputes between the Common Market and its employees that arise out of the application and interpretation of the Staff Rules and Regulations of the Secretariat or the terms and conditions of employment of the employees of the Common Market. "
B Whether the Respondent had Sufficient Grounds to
Warrant Summary Dismissal
20. The Applicant in the Reference seeks to invalidate the Secretary General's administrative action of aummary dismissal. In effect, a major ground for his prayer is that the Secretary General's decision was based not on sufficient facts or evidence, but on mere allegations. He contends that the Secretary General's decision arose from an allegation in the Police report that he was involved in the forgery of the COMESA Note Verbale. Throughout his pleadings and his oral testimony before this Court, as well as in his Counsel's submissions, the Applicant insisted that he was innocent of involvement in the forgery. He stated that, indeed, he was absolved of any wrongdoing on the following grounds.
- he was exonerated by Mr. Kabika Akakondo who, on 16th November, 2010, wrote to the Secretary General stating that the Applicant had no part at all in the forgery.
- the police eventually turned him into a State witness in the Zambian criminal court; and,
- the criminal matter was put to rest by the judgment of the Zambian Court which acquitted the only two accused persons, Mr. Nyirenda and Mr. Akakondo.
21. In summary, therefore, the Applicant contended that the Secretary General had no basis to reach the decision of summary dismissal. The Applicant testified before the Court confirming the claims stated in his pleadings.
22. For his part, the Respondent insisted that the Applicant was involved in the forgery. The Secretary General's letter of summary dismissal dated 2nd November, 2010 said so;namely, that the Police report implicated the Applicant in the forgery, and warranted his summary dismissal with immediate effect.
23. On 29th November, 2010, in response to the Applicant's letter for review of the matter, the Secretary General wrote in his letter dismissing the appeal that the appeal was frivolous and vexatious; and that, given Kabika's warn and caution statement "corroborating your participation in aiding and abetting a crime", summary dismissal was warranted.
24. In its written Reply to the Reference, the Respondent argued that following the Police report, the Respondent, "concluded that Applicant's involvement and conduct in the forgery warranted summarily terminating his service with COMESA". The Respondent added that:
"Applicant's action and involvement in the forgery demonstrated a lack of honesty, integrity and was unlawful (Rule 65(b))... and was of such a serious nature to warrant summary dismissal (Rule 67(b)) as it was threatening continued comity, cooperation.. between Finland and COMESA".
25. At the oral hearing before this Court, the Respondent produced two witnesses who testified in support of the Respondent's case as will be discussed later in the judgment.
The Court's Analysis of the issue
26. The power of the Respondent to summarily dismiss an employee who has committed serious misconduct is not disputed. It is provided for in the COMESA Staff Rules and Regulations. In particular, Rule 71 provides as follows;
"71. Summary Dismissal
The Council may dismiss a professional staff member summarily. In the case of a General Service staff member the power of summary dismissal may be exercised by the Secretary Genera" " (Emphasis added).
27. The Court takes cognizance of the fact that summary dismissal is a very serious sanction which is only reserved for serious misconduct or serious breach of the contract rendering the continuation of the employment relationship untenable. It is said to be an extraordinary sanction only to be resorted to in extraordinary circumstances. In addition, as a general principle guiding disciplinary measures in employment relationships, there must be proportionality between the misconduct and the sanction; the more serious the misconduct the more severe the sanction. As was said in the Privy Council decision in Clouston &co. v Corry  AC 122,
"now the sufficiency of the justification depended on the extent of misconduct. There is no fixed rule defining the degree of misconduct, which will justify dismissal. Of course there may be misconduct which will not justify the determination of the contract of service...On the other hand, misconduct which is inconsistent with the fulfilment of the express or implied conditions of service will justify dismissal"
28. Thus, whether summary dismissal is justified or not depends on the circumstances of the case. As was stated by Finn J.A. in Blackburn v Victory Credit Union LTd  36 CCEL 2nd 94
The courts do not consider an act of misconduct, in and of itself, to be the grounds for dismissal without notice unless it is so grievous that it gives rise to an inference that the employee intends no longer to be bound by the contract of service. There is no definition which sets out precisely what conduct or misconduct justifies dismissal without notice, and rightly so. Each case must be defined on its own facts.
29. In the more recent case of McKinley v BC Tel  2RCS the Supreme Court of Canada stated at page 183,
"case law establishes that the question whether dishonesty provides just cause for summary dismissal is a matter to be decided by the trier of fact and to be addressed through an analysis of the particular circumstances surrounding the employee's behaviour. In this respect courts have held that facts such as the nature and degree of misconduct and whether it violates the 'essential conditions' of the employment contract or breaches an employer's faith in an employee, must be considered in drawing factual conclusions as to the existence of just cause
30. The power of summary dismissal is one that must be exercised responsibly, judiciously, advisedly and on the basis of the gravity and seriousness of the staff member's misconduct. Summary dismissal is a drastic sanction. It robs the staff member concerned of the benefits of the full-blown process of a disciplinary committee. Accordingly, the basis for his summary dismissal must be commensurate with the seriousness of his misconduct. On this point, the case of McKinley v BC Tel referred to above clearly states as follows.
"Absent an analysis of the surrounding circumstances of the alleged misconduct, its level of seriousness, and the extent to which it impacted upon the employment relationship, dismissal on a ground as morally disreputable as 'dishonesty' might well have an overly harsh and far-reaching impact for employees. In addition, allowing termination for cause wherever an employee's conduct can be labelled 'dishonest' would further unjustly augment the power employers wield within the employment relationship.
31. The Ontario Supreme Court in Lewis v Ontario Plymouth Chrysler LTD.,  CanLll 28306 (ON SC) relying on McKnley above made the following observation:
"To permit unproven (and ultimately unproved) allegations to be the basis of a termination for just cause, except in the most extraordinary circumstances, would be an egregious result...''
32. We agree; and are inclined to adopt the principles expounded in the cases cited above.
33. The question therefore is whether based on the principles above and the relevant COMESA Rules and Regulations, the Respondent was justified in summarily dismissing the Applicant. As stated above the Staff Rules and Regulations empower the Secretary General to summarily dismiss an employee for serious misconduct. In the normal disciplinary case, the matter must be referred to a disciplinary committee. However, Rule 67 provides:
"67. A disciplinary case may not be referred to the disciplinary committee:
b) In respect of summary dismissal imposed by the Secretary General in cases where the seriousness of the misconduct warrants immediate separation from the service". Emphasis added]
34. Nevertheless, from the reading of the relevant Rules one can observe that summary dismissal can be resorted to only if a set of facts is sufficiently established,-namely, that there is an alleged misconduct, that the alleged misconduct must be serious and that immediate separation must be warranted by the proved facts.
35. In the instant case, the Secretary General's dismissal letter mentions the Police report as having been the basis for his decision to summarily dismiss the Applicant. The Court was never availed that Police report, despite its specific request for it. The report was never included in the Respondent's pleadings. No witness was ever called to the Court's oral hearing to testify on the content of the Police report.
36. Another source that the Respondent claims to have relied on in maintaining the decision on summary dismissal was the warn and caution statement that Mr. Akakondo allegedly made to the Police. This statement was said to have implicated the Applicant in the forgery. However, like the Police report, the Akakondo statement was never included in the Respondent's pleadings, nor was any witness called to testify to it. Indeed, it was never otherwise availed to this Court, notwithstanding its having specifically been asked for as shown in the following exchange during the oral hearing on 3rd May, 2015 (page 89 of the Court proceedings).
"Court: ...Secondly, in the Letter of 'Appeal Against Summary Dismissal', there is reference to Kabika's warn and caution statement which is said to clearly corroborate [the Applicant's] pafticipation in the crime...Why did you not supply us with these documents?"
Mr. Masuku: ...It was not introduced in this matter for the simple reason, my Lord, that it had to do with a criminal trial...lt did not have a direct bearing on this matter and we had no plans of inviting Mr. Akakondo to come and give evidence..
Court: But you clearly rely on it ..So how can you say it only concerned the criminal case only and not your
37. The Respondent introduced two witnesses who testified at the oral hearing in support of its defense. The first witness was Mr. Titus Chisha, COMESA's Security Officer who allegedly carried out an internal investigation into this matter of the forgery of the Note Verbale. During his testimony, Mr. Chisha explained to the Court that, in the course of his investigation, he interviewed Mr. Akakondo and the Applicant; and that they both made express admissions to their involvement in the forgery. The witness said that he submitted his report on all this to COMESA on 28th October 2010. In answer to a question by the Court why the signed report was not in the Court file, he said that the signed report which he had submitted was destroyed when COMESA building was set on fire. He, however produced what he claimed to be a copy of the document that he had submitted to the Respondent.
38. After the testimony of Mr. Chisha, Counsel for Respondent requested the Court for leave to introduce the said copy of Chisha's investigation report into the record. Although this document was not included in the list of documents annexed to the pleadings of the Respondent, the Court decided to admit it in to the record in the interest of justice. On examination, the Court found that the content of the said document was not different from the testimony orally presented to the Court by Mr. Chisha.
39. The Respondent also called Mrs. Mary Gachonde, who was a Human Resources officer when the Applicant was dismissed. She testified that she was informed by the Finnish Embassy of the alleged forgery which apparently had originated in the COMESA Secretariat, and that she instructed the COMESA security officer, Mr Chisha to conduct investigation on the matter. She also confirmed that the security officer made the investigation and submitted a report to the administration. She informed the Court that this report stated that Mr Hwalima Dube was involved in obtaining a COMESA document which was given to a person who was not an employee of COMESA to present to the Finnish Embassy in order to obtain a visa. On being asked by the Court who had removed the letter from COMESA and consequently altered it, the Witness stated: "The report indicated that Mr. Hwalima was involved". When further asked in what way Hwalima was involved, the Witness responded: "Your honour those details were not in that report". The Witness went on to state categorically that the decision to separate Mr Dube was based on the finding of the security personnel. (see page 29-30 of the proceedings)
40. As alluded to earlier, the two documents which seem to have informed the decision of the Respondent: namely, the Police report and the warn and caution statement were not availed to the Court. Moreover, as far as the warn and caution statement by Mr Hwalima Dube is concerned, there is a contradiction between what the Applicant and the Respondent contended. On the one hand, in his letter to the Secretary General on 18th November, 2010, the Applicant claimed that "Mr Akakondo, my co-accused has even confirmed in his warn and caution statement taken by the Police, that I was not part of the alleged forgery issue, me what I know is that I only introduced Edward to Mr Akakondo just as mere friends at a Bottle store". (Annex 9 to the Reference). On the other hand in his reply the Secretary General stated:
"we regret to inform you that Mr Kabika [Akakondo] warn and caution statement clearly corroborates your participation in the crime. Therefore we find your purported appeal to be frivolous and vexatious and that according to the investigation carried out by the police, the seriousness of your alleged misconduct, aiding and abetting a crime warrants immediate separation from service
41. It is clear that the respective positions of the Applicant and the Respondent regarding the content of the warn and caution statement are contradictory. The Court therefore, holds that the Respondent's purported reliance on the alleged Police report and Kabika Akakondo's warn and caution statement does not assist in determining whether the summary dismissal was justified.
42. As regards the testimony of the Respondent's witnesses the Court finds it unhelpful because of the following.
- As far as Mr. Chisha's testimony is concerned, the Court finds it unreliable because it is inconsistent with what he testified in the Criminal case against Akakondo and Nyirenda. During his testimony in the Zambian courts the witness testified that when the COMESA Registry staff, who are responsible for circulating the Note Verbale were first interviewed, they all denied any knowledge. However, the second time they were interviewed, according to this witness,
"Accused No.2 [Akakondo Kabika] allegedly admitted having gotten the Note Verbale from COMESA and gave it to Edward a relative to Patrick Nyirenda, Accused 2 was then arrested and after his arrest he allegedly said although he was introduced to Edward he was the only one involved".
43. On the other hand before this Court, the witness testified that both Akakondo Kabika and Hwalima Dube had admitted their involvement in the forgery which is inconsistent with what he testified in the Zambian courts. The Court further finds the witness's reference to the admission by the Applicant unreliable since he did not secure a written statement to that effect which could be used in evidence.
- As regards the second witness of the Respondent, Mrs Mary Gachonde, her testimony did not attest to personal knowledge of the role of the Applicant in the alleged forgery affair. When questioned on the specific role of the Applicant she kept repeating that he was involved without specifying what his role was.
44. For all these reasons, the Court is unable to find that the Respondent had sufficient evidence on which to base the decision to summarily dismiss the Applicant.
C. Whether in imposing the sanctions of Summary Dismissal the Respondent complied with due process requirements.
45. On this issue, the Applicant contends that his summary dismissal was unfair, erroneous, unlawful and malicious as the Respondent
- denied the Applicant's right to be heard pursuant to COMESA Staff Rules and Regulations
- failed or ignored to establish an ad hoc investigative panel to investigate and satisfy that the Applicant had committed the crime alleged pursuant to Rule 64(5) of COMESA Staff Rules and Regulations
- rushed to erroneously invoke Rules 65(b), 67 and 71 and thereby presumed the Applicant guilty before trial and conviction by the court and deprived the Applicant a universal constitutional right of presumption of innocence until proved guilty.
46. Applicant further argued that even if Applicant was liable to summary dismissal, the Secretary General was under an obligation to comply with rule 64(5) to satisfy himself that the allegations were genuine.
47. The Applicant relies on a number of documents in order to prove that the procedural requirements pertaining to summary dismissal were not complied with. These include the letter of dismissal dated 2nd November 2010, which stated that he was summarily dismissed from his service of COMESA "with immediate effect". He also filed and relied on his own letters of appeal against his dismissal and requests for the setting up of an administrative appeals panel to review his case as well as the part of the constitution of Zambia, which relates to the right to be presumed innocent until proved guilty. The Applicant, Mr. Dube testified during the oral hearing confirming his arguments and claims against the Respondent.
48. In its replies to the Reference, the Respondent denied the allegations of the Applicant. On the specific issue of non-compliance with procedural requirements relating to summary dismissal, the Respondent argued that Rule 67(b) exempts referral of a disciplinary case to the disciplinary committee where summary dismissal is being imposed by the Secretary General for serious cases of misconduct and argued the Applicant's matter was in this category. The Respondent submitted that as this was an administrative procedure and not a criminal process, the COMESA Staff Rules and Regulations had been followed by the Respondent, which found the Applicant's conduct deserving of immediate separation.
49. The Respondent, save for denying as untrue, did not address the Applicant's claim regarding alleged failure to comply with Rule 64(5) relating to the fact that Secretary General may terminate the service of a Staff member for inefficiency or any other serious breach of conduct on the basis of a report by an adhoc investigative panel. In his closing remarks Counsel for the Respondent resonded to a question by the Court arguing that in case of a serious misconduct such as was alleged to have been committed by the Applicant, requirements of due process in Rule 65(1) and (2) are ousted.
The Court's Analysis of the issue
50. In the main, issues of due process are addressed in Rule 66 of the COMESA Staff Rules and Regulations. The Rule states:
"66. Due Process
- No staff member may be charged for an offence under these Rules without communicating to him or her in writing the allegations made against him or her.
- No disciplinary proceedings may be instituted against a staff member unless he or she has been given at least fifteen working days to enable him or her answer the allegations in writing.
- Except in the case of summary dismissal, no disciplinary measure shall be applied against a staff member unless the matter has been considered by the disciplinary committee.
- A staff member against whom disciplinary proceedings have been instituted may call witnesses, including from among the staff.
51. The essence of the above provision is that although the Secretary General has the discretion to determine whether certain misconduct warrants summary dismissal, the exercise of that discretion is subject to the requirements of due process set out in Rule 66. These requirements are that before a staff member is charged of any misconduct, there should be a written communication of the allegations against him, and that the staff member should be given at least fifteen days to answer to the allegations in writing. The only exception with regard to summary dismissal is that there is no need to refer the matter to a disciplinary committee before a disciplinary measure is taken. It may be argued that Rule 67(2) envisages a situation where immediate separation is warranted. However, this Court believes that the power under Rule 67(2) should be exercised in a manner consistent with the due process requirements provided under Rule 66.
52. In the Secretary General's letter of summary dismissal, it is clear that even though the he stated that charges had been preferred against the Applicant, in fact no charges had been preferred at all neither in the letter, nor in any other document.
53. The matter of lack of communication of charges against the Applicant was specifically put by the Court.
"Court: The letter of dismissal of 2nd November saying you have been dismissed summarily and charges have been preferred against you we are asking which are these charges; what was this gentleman charged with which justified this sanction?"
"Mr. Masuku: My Lord, in as much as that is concerned, I would submit that it was a typo in the sense that...the respective provisions [of Rules 71, 65(b) and 67(b)] do not provide for charges to be drafted. So to that I would humbly submit that there was a typo"
54. The Court finds that the Secretary General's Letter communicating his decision to summarily dismiss the Applicant failed to notify the Applicant of any specific charge or accusation of his wrong doing, against which the Applicant would or could then defend himself. That after all, is the purpose and objective for requiring such communication under Rule 66(1). The letter merely referred to his involvement in the forgery of the Note Verbale to the Finland Mission without any details. The necessity of having precise charges and the need to avail the evidence to a person charged with misconduct was discussed in In re Limage (No.3) Judgment No.1878 of the Administrative Tribunal of the ILO where the employer was found to have denied due process because of not communicating the charges to the employee and not availing copies of the evidence against her. In this case, Applicant was never availed the police report and the Akakondo warn and caution statement taken by the police nor the COMESA internal investigation report all which the respondent refers to both in the pleadings and the oral hearing as having influenced the decision to dismiss.
55. As regards the issue of Appeal as an integral element of the required fair procedure for summary dismissal, the facts of the instant case were as follows. Aggrieved by the Respondent's decision to summarily dismiss him, the Applicant wrote to the Secretary General on 18th November, 2010 requesting a review of his case and reinstatement in the service. The Secretary General wrote back to the Applicant a letter dated 29th November 2010 stating that, after due consideration the Respondent found the appeal to be 'frivolous and vexatious" and declined to set up an administrative appeals panel..
56. It is clear that the Applicant's appeal was not dealt with in accordance with the Rules. Rule 74 on 'Appeals to Administrative Appeals Panel" states that:
"74(1) A staff member who is aggrieved by an administrative decision of a disciplinary committee or policy organ taken under these rules shall first appeal to an Administrative Appeals Panel set up under these Rules.
(2) An Administrative Appeals Panel shall be set up by the Secretary Genera/ within six (06) months of an appeal being lodged by a staff member’’
57. The Court finds that the instant matter falls under this Rule, as the decision to summarily dismiss was an administrative decision. However, no Administrative Appeals Panel was set up with regard to Applicant's appeal.
58. With all the above, the Court finds that the Applicant was denied his right to be informed of the charges against him, the right to answer to the charges and his right to have his appeal considered by an Administrative Appeals Panel as envisaged by the COMESA Staff Rules and Regulations.
D. Whether the Parties are entitled to the Reliefs sought
59. The Applicant's prayers in the Reference were as follows:
- A declaration that the summary dismissal was wrongful and unlawful and inconsistent with Article 27 of the COMESA Treaty.
- Reinstatement of the Applicant to his former position in COMESA as Driver.
- Payment of the Applicant's salaries and allowances due and other benefits from the date of summary dismissal to the date of reinstatement.
- Award of damages for mental torture arising from the Applicant's wrongful/unlawful dismissal.
- Award of costs against the Respondent.
60. The Respondent opposed the Applicant's prayers. In particular the Respondent challenged the quantum of the Applicant's monthly salary-namely, that the net salary should exclude an amount of USD 38.74 of overtime pay. Likewise, the Respondent stated that while the Applicant to medical expenses, such expenses
- were claimable only for expenses actually incurred (i.e. expend money first and then submit a claim"); and
- reimbursable only up to 80% of the actual expenses, subject to a maximum of COM$3,750 per annum
61. In the main, apart from prayer number (i), the Court found that the Respondent's challenges to the Applicant's prayers were restricted to the above two points. There would, therefore, appear to be no other contentions or challenges to the Applicant's other prayers-namely, prayer numbers (ii), (iii) and (iv). In the Court's view, therefore-and given especially that the applicant has succeeded on ail the substantive issues in this Reference, the Court has no option but to grant the Applicant's prayers. The Court's position on the specific prayers is as follows:
- Declaration of unlawful dismissal-The Court concludes that, indeed, the Respondent's action in summarily dismissing the Applicant without just cause and without procedural fairness (as discussed in detail elsewhere in this Judgment), was wrongful and unlawful.
- Reinstatement-The parties did not argue this prayer in any detail. However, the Court takes cognizance Of the well established principle of employment relations to the effect that an employee cannot be forced onto an employer against the employer's will. In the instant case, it is quite evident that the employee-employer's relationship has been poisoned. There can no longer be any trust between the Applicant and COMESA. The Court would therefore decline to reinstate the Applicant as prayed.
- Salaries/allowances: By his Contract of Employment (letter of 30th September, 2009), the Applicant was entitled to an annual salary of COM$ 3,525; 30 days annual leave; reimbursement of education allowances of up to 75% of actual education expenses up to a maximum of Com$ 2,888; Dependency allowance of COM$230 per child per annum up to a maximum of four children under 18 years or 21 years in the case of a dependent still pursuing full time education; housing allowance of 7% of the annual basic salary; and reimbursement of up to 80% of actual medical expenses incurred by the Applicant or his family up to COM$ 3,750 per annum.
Having found as the Court has done above, that the Applicant's dismissal was wrongful and unlawful, the Court holds that he is entitled to the benefits of his contract, except for education and medical allowances for which the Applicant produced no proof of having incurred any such expenses. For the purpose of his entitlement to the said benefits the period of entitlement staffs from the date of his dismissal (2nd November, 2010), until the date of the expiry of his four-year contract (i.e. 2nd October, 2012.
- Damages: The Applicant's claims for damages were not supported by evidence. Accordingly the Court declines to award any.
- Costs-The Court awards to the Applicant the costs of this Reference and of Preliminary Application No. 1 of 2014; to be taxed by the Registrar.
The Court Order
In the result, the Court orders as follows.
- The summary dismissal of the Applicant was wrongful, unlawful and procedurally unfair.
- The prayer for reinstatement is denied
- The Applicant is entitled to the benefits of his contract for the period commencing from the date of his dismissal to the date of expiry of expiry of his four year contract, i.e. 2nd October 2012 except for the medical and education allowances.
- The claim for damages is dismissed
- The Applicant is awarded costs for this Reference and for the Preliminary Application No 1 2014, to be taxed by the
IT IS SO ORDERED
Done at Lusaka this 11th day of May, 2015
Hon. Prof. Justice Samuel Rugege- Principal Judge
Hon. Adrien Nyankiye- Lord Justice
Hon. James M. Ogoola- Lord Justice
Hon. Dr. Menberetsehai Tadesse- Lord Justice
Hon. Luke Malaba- Lord Justice