Mon, 13 Mar 2017 10:29:10 +0000
By VIOLET TEMBO
THE Supreme Court sitting in Ndola has dismissed with costs an appeal by Lumwana Mining Company Limited to dismiss 71 workers for allegedly circulating a pornographic video.
In February 2014 the Ndola High Court ruled in favour of the workers who were dismissed by the company in relation to an email and a video titled ‘’Poor Boy’’ which was allegedly shared among 71 employees on the appellant’s internet infrastructure.
Lumwana then appealed to the Supreme Court to upset the lower court judgment
But sitting in Ndola recently, Supreme Court judges Rhodah Kaoma, Michael Musonda and Chief Justice Ireen Mambilima dismissed the appeal with costs.
In dismissing the appeal, the Supreme Court ruled that Lumwana mine management should have stated whether the seriousness of the offence was the receiving or forwarding or the distribution of pornographic, sexually explicit material by use of the company IT network.
Judge Rhodah Kaoma said despite the objection by the employees that they were not given time to prepare themselves after the amendment of charges, the disciplinary hearings went ahead and all 71 employees were found guilty and dismissed.
The court said, in its view, the lower court was on firm ground when it found that the respondents were dismissed for an undefined offence and that the dismissals were wrongful and unlawful.
“We have scrutinised the grounds of appeal and the arguments advanced by the parties. As we see it, the main issue in this appeal is whether the court below was right to conclude that the dismissals of the respondents were wrongful and unlawful.
The Supreme Court found that the company in its appeal did not explain where the offence was committed because there was the receiving part and forwarding of the said material.
“Therefore we cannot fault the lower court’s decision to agree with the respondents that the video should have been produced by the appellant particularly that the email was received and circulated on its internet infrastructure.
“Therefore, the appellant’s argument lacks merit,” the Supreme Court ruled.
The court below had also lamented the non-production of the record of the initial disciplinary and appeal hearings and statements of witnesses.
“Clearly, that evidence could only be produced by the employer.
Therefore, the court cannot be faulted for saying at the trial the appellant neglected to provide the evidence, as such it was unable to say whether or not the offences were established,” the Supreme Court said.
The court further said that the employees in question had been fired by the company on grounds related to an email and a video titled “Poor Boy”, which was allegedly pornographic.
According to Lumwana, the email was received and forwarded among 71 of the employees on the company’s internet facility, an act termed to have contravened Barrick Lumwana’s computer and telecommunications policy.
The company indicated that the action by the employees amounted to misuse of company property.
Particulars of the case were that on August 7, 2013, the employees were charged with gross misconduct, misuse of company property by violating Barrick computing and telecommunications policy and distribution of pornographic, sexually explicit material or images of nudity by use of the Lumwana IT network.
On February 4, 2014, the dismissed employees took the case to Ndola High Court which ruled in their favour, stating that the action taken by the company to dismiss them was unfair.
However, Lumwana mine appealed to the Supreme Court on grounds that the employees’ action amounted to misuse of company property.
