THE Lusaka High Court has awarded former Standard Chartered Bank head of legal, compliance and company secretary Celine Meena Nair 36 months’ gross salary as damages after finding that she was constructively dismissed.
In this case, Nair sued the bank in the High Court’s Industrial Relations division following her resignation on July 28, 2015 which she claimed was necessitated by acts and words of abuse she suffered over a period of time at the hands of the bank’s managing director and chief executive officer Andrew Okai.
Judge Martin Musaluke in his judgment delivered on October 12, said the bank failed to follow its own grievance procedure and started telling mendacious statements about the process, saying a breach was therefore, committed.
“The law is settled that where an employee fails to investigate an employee’s complaint or grievance, malice on the part of the employer will be implied. When the complainant realised that the process was moribund and that the respondent had breached the employment contract, she decided to leave,” he said.
He awarded her 36 months gross salary.
“I believe this compensation is adequate to cater for the claim of damages for loss of earnings. I will therefore, not award any damages for loss of earnings,” judge Musaluke said.
He also declined to award damages for loss of expectation of remaining in employment, payment for leave days, an order for payment for the nine months in lieu of notice because there was no evidence to support the claims.
“The award of 36 months gross salary as damages shall attract at short term lending rates from 9th September, 2015 to judgment date. Thereafter, at the commercial bank lending rates as determined by the Bank of Zambia from time to time until full settlement. I award costs to the complainant,” judge Musaluke said.
According to Nair’s evidence on record, she worked at the bank for three substantive managing directors and acting managing director including Okai.
She told the court that her work relations with the managing directors apart from Okai was very excellent and professional such that she received cash bonuses and recognition for her hard work from them and she produced her letters of recognition of her hard work.
Nair had told the court that she resigned on July 28, 2015 having joined the bank on July 17, 2006 on a pensionable and permanent basis.
She copied her resignation letter to Okai detailing reasons for that decision and copied it to the chairman of board of directors and board members of the bank.
It was her testimony that she resigned from the bank because she was victimised and harassed by Okai and that before she tendered her resignation letter, she had brought to the attention of the bank acts of abuse by the CEO through an email dated July 9, 2015 addressed to Kerin Lyn Sader her line manager and copied to Emmanuel Degroote.
In her email, she outlined the incidents of victimisation and abuse, among them that on October 1, 2013 when Okai joined the bank as CEO, it was traditional for the new managing director to have one-on-one sessions with all executive committee members and that on October 13, the same year when he met her, he told her he could not work with her based on the information he had received from his confidants in the ExCo but she asked for chance to prove herself.
Nair also stated that at a team building workshop headed by Veronica Munroe, attendees were asked to write anything they did not like about Okai and that despite her not writing anything and leaving before the session ended and proceeded on two weeks leave, the managing director accused her of having filled three flip charts at the workshop with negative comments about him.
She had told the court that when she pushed that a backlog of legal bills be cleared, Okai accused her of wanting to quickly pay the legal bills as the lawyers were her friends and that she would ‘surely get a commission’ after they were paid.
Nair had also testified that as a single mother, she would pick up her child from school during lunch hour 12:30 to 14:00 hours but Okai on March 19, 2015 called her and asked her to choose between being an employee or a mother and was informed that his personal assistant would be calling her office every 15 minutes to check if she was in the office.
She said it disturbed her because her school runs were done during lunch hour and did not disturb her work.
Nair also told the court that on May 22, 2015, she underwent wisdom tooth extraction which involved minor surgery.
She said the extraction of the tooth caused an infection whereby she developed some swelling and pain in the jaw and that that was the same week they were having both management and board meetings and since she was the board secretary, she chose to attend despite the pain she was experiencing.
Nair had narrated that one of the ExCo member arrived late and that in a bid to rush and sit, he slammed the door behind him.
She said as she was already experiencing pain which affected her sight momentarily, she explained to James Koni and Arik Islam, her ExCo colleagues who sat on each side of her and that it was at that moment that Okai asked what the trio were discussing.
She said she was unable to respond due to pain while her two colleagues told the CEO that her pain was greatly exacerbated by the slamming of the door a few minutes earlier.
After the duo explained to him, Okai left his chair and begun slamming the door repeatedly and each time he did so would ask her ‘Did that pain? did that hurt?
Nair added that Okai enlisted Sonny Zulu who joined in the slamming of the door which prompted her to leave the meeting as she could not bear the pain.
She further told the court that on May 29, 2015, she went for a meeting at the Hotel InterContinental in Lusaka and that she had a cannula on her arm as she was being treated for an infection in the jaw.
Nair had told the court that on the material day, she asked for permission to have her routine antibiotic dose at the Care for Business Hospital but Okai told her that he wished he could administer the dose himself.
Nair had testified that when she enquired as to why Okai would want to administer the medicine since he was not a doctor and that she would be killed, he responded saying that would be the idea of him administering the dose.
She also testified that on June 5, 2015, Okai called her to his office and started yelling at her and asked if she was some spy and why she rushed into State House that morning and further accused her of revealing to State House the status of the board meeting and accused her of trying to have him deported.
Further that he would show her CCTV footage of her entering State House but failed to do so.
Nair said following continued harassment from Okai, she wrote to her line manager to trigger the grievance procedure and gave her evidence via teleconference; she was informed that it could not progress because Okai would be away for two weeks which information was incorrect as he was only out for a day.
She realised that the grievance panel was not being truthful, she then escalated her complaint to a DeGroote and the board chairman Mulenga Mundashi, State Counsel, but nothing was coming out and there was no response until she made a painful decision to resign as she felt no one was ready to listen to her and the grievance process was going nowhere.
The bank, however, in its answer denied that Nair was constructively dismissed.
The bank denied that Nair’s resignation was necessitated by words and acts of abuse suffered at the hands of Okai.
The bank had further submitted that Nair was not treated any different from other members of staff at her level and that she was promoted at the instance of Okai, therefore, denying her constructive dismissal claims.
Okai, however, was not called to testify in the matter.
Meanwhile, judge Musaluke added that the witnesses who testified on behalf of the bank did not dispute the allegations that were advanced by Nair as regards the behaviour of Okai.
“All allegations of abuse and mistreatment of the complainant by Mr Okai were never rebutted by the respondent’s witnesses. To make matters worse for the respondent, they chose not to call Mr Okai whom I consider to be a key witness since he was at the centre of the allegations,” he said.
Judge Musaluke agreed with the submissions by Nair that failure to call a key witness was fatal to that party who fails to do so.
“The failure to call Mr Okai to come and testify as regards the allegations levelled was inexcusable and fatal to the respondent’s case. This was why at trial it was very difficult for the two respondent’s witnesses to rebut the allegations as they had little or no personal knowledge of them,” said Musaluke./