LUSAKA High Court Judge Mubanga Kondolo has dismissed a claim of wrongful dismissal after the applicant was acquitted of criminal charges on which he lost his job.
This is in a ruling in which Chisenga Sichande appealed to the High Court to declare as unlawful and unjust the decision to terminate his employment with Finca Zambia Limited, following his acquittal of criminal charges against him which were the basis for the dismissal. Mr Justice Kondolo in delivering his ruling explained that wrongful dismissal over alleged misappropriation of company money could not be overturned based on an acquittal in a criminal trial over the same money.
“Establishing the fact of whether or not the plaintiff had misappropriated the money could not be proved by relying on his having been acquitted in a criminal trial over the same money.
“The criminal record was not essential for establishing any facts in the civil proceedings and can thus be distinguished from the matter at hand which requires proof that there was, inter alia, a prosecution and an acquittal; failure to provide such proof consigns a case of malicious prosecution to definite failure,” Justice Kondolo said.
Mr Sichande had requested the courts to order payment of K308,902.24 as dues he would have earned for the remainder of his contract of employment if he was allegedly not unlawfully and unjustly dismissed.
Justice Kondolo said on the claims that the plaintiff was wrongly prosecuted, which was also malicious, this must be proven by the claimant by way of documentation to that effect.
“One of the claims in the main action is for damages for malicious prosecution. It therefore follows that in order for a plaintiff to maintain a claim aforesaid, he must produce documents from criminal proceedings,” he said.
Mr Sichande had complained before the High Court that while the company failed to prove any of its eight cases against him, they still could not reinstate him into employment. And Justice Kondolo in his ruling noted with sadness that while the application was correctly before his court, the failure by both parties to conduct discovery of documents as required by law was most unfortunate.
“I note with dismay that such conduct is rather common place these days”.