Download in the industrial relations court of malawi

IN THE INDUSTRIAL RELATIONS COURT OF MALAWI
PRINCIPAL REGISTRY
MATTER NO. IRC. 18 OF 2000
BETWEEN:
KACHINGWE ……………………………………………... APPLICANT
-and-
SHIRE BUS LINES ……………………………………. RESPONDENT
CORAM: R. Zibelu Banda (Ms), Deputy Chairperson
Nindi Employer’s Panelist
CHING’OMA EMPLOYEE’S PANELIST
APPLICANT
Macheso for Respondent – Human Resource Manager
Ngalauka – Court Clerk
JUDGMENT
Dismissal- Summary dismissal-Reasons for dismissal-Previous warnings- Procedure for dismissalInvestigation- Right to be heard--Disciplinary hearing-Appeal- Severance allowance.
Facts
The matter came for determination of the manner of termination of applicant’s
employment contract with the respondent. The applicant was employed as a messenger in
April, 1989. His employment was terminated on 13 th August, 1999 while he was serving
as fuel attendant for the respondent. The reasons for termination were failure to explain a
shortage of 129 litres of fuel on a fuel pump, which he was attending and deception.
Issues
The applicant contended that the dismissal was unfair basing on the following grounds:
His supervisor reported the shortage to senior management before discussing the issue
with him; another fuel shortage was wrongly attributed to him; he was charged with a
morning shift attendant while the shortages occurred during different times; management
did not call as a witness a metre reader during the applicant’s shift; and he was not given
an opportunity to appeal against the decision to dismiss him summarily.
The respondent contended that they were entitled to summarily dismiss the applicant
because he incurred a shortage of 129 litres fuel and after the shortage was known to him
he deceitfully attributed the fuel to a recovery bus. At a disciplinary hearing he admitted
that in fact he had not allocated any fuel to the recovery bus. He however could not
explain how the shortage had come about. This was gross negligent of duties which
occasioned loss to company property, and he was in breach of trust by attempting to
deceive the company.
Assessment of Issues
It is clear from the facts that the applicant was dismissed summarily for gross negligence
and deception. When shortage was discovered he was called before a disciplinary hearing.
Present at the hearing were union members, the applicant and management from the
respondent’s company. He was asked to explain his side of the story, which he did. He
did not deny the allegations. He actually admitted knowledge of the shortage and his
attempt to cover up the shortage through deceit.
The applicant’s grounds for challenging the dismissal have no legal basis. The court
observed that since the matter was serious it was proper for the applicant’s supervisor to
report it directly to management. There was no anomaly in this procedure. The facts were
clear that the case of the applicant was dealt with separately from the other case, therefore
the applicant can not claim that he was charged with another person. The applicant
admitted a shortage of 129 litres of fuel and therefore the shortage of the other employee
could not have been attributed to him. The other employee’s shortage was 100 litres. If
this shortage had been attributed to applicant the allegation would have been for 229 litres
and not 129 litres. Further, there was no need for the respondent to bring in a witness who
they did not require, like the metre reader. Finally, the applicant alleged that he was not
given an opportunity to appeal against the dismissal.
Appeal
In the dismissal letter he was advised to appeal against the decision if he was aggrieved. He tried to
exercise this right, but he never had the opportunity to sit before an appeal’s committee. It was the
reasoning of respondent that when the applicant’s case was brought before the Chief Executive to
consider his appeal. The Chief Executive was of the view that the matter did not require further hearing
by way of appeal. The facts were clear and the applicant had no excuse for what he had done. He had
admitted the allegation including that he had tried to deceive the company. The matter was
straight-forward and clear, the appellate body decided against hearing the applicant’s appeal.
The Law
This cause of action arose before the Employment Act 2000. Therefore the provisions of
the old Act of 1968 will be used where applicable, the Constitution, common law and
good industrial practice.
The law and good industrial practice demand that an employer must give reasons before
dismissing his employee. This requirement allows the applicant to defend himself against
the allegation or reason for the dismissal. Section 43 of the Constitution states that before
administrative action is taken, reasons must be given. Interpretation of this provision was
ably provided by the Malawi Supreme Court of Appeal in Dr Chawani v. The Attorney
General ( MSCA Civil Appeal No. 18 of 2000 (unreported) )
Further, Articles 4 and 7 of Convention No. I58 of International Labour Organisation,
Concerning Termination of Employment at the Initiative of the Employer provide that
reasons must be given for dismissal of an employee and s/he must be afforded an
opportunity to be heard. In Earl v. Slater & Wheeler Ltd [1973]1 WLR 51, the court held
that the burden is on the employer to show the reasons for dismissal.
In the instant case, the respondent brought allegations of fuel shortage to the applicant
before he was dismissed. An investigation was carried out, and it turned out that the
applicant was on duty at the time the fuel shortage was occasioned but he failed to explain
the shortage. Instead he informed his supervisor that the fuel had been allocated to a
recovery bus. Upon investigation it was discovered that the fuel had not been allocated to
the recovery bus. In explaining his side the applicant informed his superiors that indeed he
had not allocated any fuel to the recovery bus. He lied in order to cover up the loss
because it was difficult to ascertain whether the recovery bus had been fueled since it did
not have a way bill.
The facts are clear that the applicant was heard by an impartial disciplinary committee,
which, comprised members of employees’ organization among other members. This
procedure complied with the law and good industrial practice. (See Prindella v. Limbe
Leaf Tobacco Company Limited, IRC No. 49 of 2002 (unreported).)
Finding
THE OFFENCE WAS A SERIOUS MISCONDUCT BECAUSE IT INVOLVED A COMBINATION OF GROSS NEGLIGENCE
AND BREACH OF TRUST. THEREFORE, THE COURT UNANIMOUSLY FOUND THAT THE RESPONDENT WAS
ENTITLED TO DISMISS THE APPLICANT SUMMARILY. ALTHOUGH AN APPEAL PROCEDURE FORMS PART OF
THE WHOLE PROCESS OF DISMISSAL, THE RESPONDENT COULD NOT BE FAULTED FOR FAILING TO HEAR THE
APPLICANT ON APPEAL. THE MATTER WAS SERIOUS AND THE APPLICANT HIMSELF HAD ADMITTED THE
ALLEGATIONS, WHICH HAD BEEN PROVED THROUGH A THOROUGH INVESTIGATION. THE PURPOSE OF AN
APPEAL IS TO QUESTION THE PROCEDURE OR FACTS RELIED ON BY THE TRIAL TRIBUNAL IN REACHING A
DECISION. THE APPLICANT DID NOT SHOW IN COURT WHAT MATTERS HE WAS TRYING TO APPEAL AGAINST
OTHER THAN THE GROUNDS HE BROUGHT INTO COURT, WHICH, THE COURT UNANIMOUSLY FOUND WERE
UNFOUNDED AND WITHOUT ANY LEGAL BASIS.
The court unanimously found that the respondent had shown the reasons for dismissing the applicant. The
court found that these reasons were valid and combined with previous warnings given to the applicant for
misconduct constituted serious misconduct warranting summary dismissal. In determining the validity of
grounds for dismissal, a court can consider previous warnings given to the employee although the
warnings were for unrelated misconduct.
“Consultation and warnings are relevant in a number of different cases including dismissals for
misconduct. An employer is entitled, moreover, to have regard in a misconduct case to the fact that the
employee has received a previous warning in deciding whether or not to dismiss. This is so even where,
that previous warning related to behaviour which, was different from that which is the potential basis for
dismissal.” (See Edwards M. ed. Dismissal Law; A Practical Guide For Management, 1991, Kogan
Page, London at 126 to 127.)
In the instant case, the applicant admitted to have been warned on two previous
occasions for misconduct. These two warnings were not related to the misconduct
that caused the dismissal. However, an employer is entitled to consider previous
warnings in determining an employee’s misconduct case. It follows that a court
can consider those factors in determining whether the employer acted fairly in
dismissing the employee.
Terminal Benefits
The applicant is entitled to only those benefits, which he was entitled to under his contract
of employment. In this regard, there was proof that he received his pension contributions
and salary up to the day of his dismissal.
Severance Allowance
The applicant is not entitled to severance allowance nor is he entitled to notice pay
because he was dismissed summarily. Order 5 © of the Wages and Conditions of
Employment (Severance Pay) Order made under section 5 of the Regulation of Minimum
Wages and Conditions of Employment Act stipulates that an employee shall not be
entitled to severance pay where s/ he is dismissed summarily. (See Mussa v Securicor
Malawi Limited. IRC No. 2 of 2000 (unreported))
Pronounced in open court this …. day of……………….. 2003 at LIMBE.
R. Zibelu Banda Ms.
DEPUTY CHAIRPERSON
J. Ching’oma (Ms.)
EMPLOYEE’S PANELIST
Nindi
EMPLOYER’S PANELIST