FACTS AND EVIDENCE
The evidence in this matter came from Patrick Tindo of Nyalugwe Village, T.A. Kadewere,
Chiradzulu who adopted his witness statement. He tendered the letter of dismissal which reads as follows:-
Mr Patrick Tindo
C/o Transglobe Produce Exports
P. O. 5035
RE: DISMISSAL ON THEFT BY FORGERY
Following your court conviction on forgery of Admarc document and theft of 40 bags of soya beans which you were transporting from
Lilongwe to Blantyre warehouse you are instantly dismissed from work.
L. B. Chadzandiyani
He is claiming loss of salary at the rate of K650.00 per month for 11 months.
The other witness was Oliver Malindima of Mwanamvula Village, Traditional Authority
Mkanda, Mulanje who also adopted his statement witness and tendered his dismissal letter which is worded like that of Patrick Tindo.
He is claiming salary for 11 months allegedly representing the period from time of arrest up to 8th March 1999. Both plaintiffs indicate
that they were not given pay in lieu of notice and hereby claim the same. The uncontroverted evidence from the two plaintiffs clearly
establish the following facts:
The plaintiffs were employed by the defendant as truck driver assistant and truck driver respectively.
On or about 27th June 1998, the plaintiffs were arrested by Limbe Police on suspicion of stealing 80 bags of soya beans belonging
to the defendant. The Limbe Magistrate Court convicted the plaintiffs on charges of forgery, contrary to Section 353 of the Penal
Code and theft by servant contrary to Section 286 of the Penal Code as read with Section 271 of the same code.
On 28th January 1998, the High Court quashed the plaintiffs' conviction and exonerated them from all charges.
On 8th March 1999, the defendant dismissed the plaintiffs from their employment on the basis of their earlier conviction. The dismissals
were effected despite the earlier acquittal by the High Court.
The plaintiffs were not paid their salaries from 27th June 1998 the date of arrest to 8th March 1999 the date of dismissal. The first
plaintiff's salary was K1,300.00 per month and the 2nd plaintiff's salary was K650.00 per month.
The effect of an acquittal/exoneration as in the present case is to clear any allegation of wrongdoing. The law requires that once
an employee has been exonerated by a court of law, he must be reinstated and paid his salary and benefits from the time of arrest
to the time of reinstatement.
The law is clear that dismissal cannot have retrospective effect. See the case of Phambala vs Admarc civil cause no. 1601 of 1996. Therefore, a dismissed employee is entitled to wages to the time of dismissal.
Interest on sums owing may be awarded at the discretion of the court. See the case of Zgambo vs Kasungu Flue Cured Authority (12 MLR 311).
The common law position stated above has completely changed in Malawi by the Employment
Act 2002, giving more protection and terminal benefits to an employee than did the common law. However, that is not applicable in
this case because the law was enacted later than the acts complained of. I would therefore order that firstly, the defendant pays
the plaintiffs their salaries for the period from 27th June 1998 to 8the March 1999 i.e 9 months and not 11 months at the rate of
K650.00 and K1,300.00 per month. The payment should be calculated up to 8th March 1999. Secondly, both plaintiffs should be paid
one month's salary in lieu of notice. Thirdly, I refuse to award interest on the sums due and payable to the plaintiffs for their
withheld salaries on the ground that although the plaintiffs were acquitted by the High Court for forgery, there is evidence in the
court bundle which is incompatible with the total innocence of the plaintiffs. Awarding interest in such circumstances would lack
equity and fairness. I decline to do so.
Lastly, the defendant is condemned to pay costs for these proceedings.
PRONOUNCED open court at the High Court, Blantyre on the 18th day of August 2004.