Opportunity to be heard
Apart from the reason for the dismissal, unfair dismissal is based on the manner in which the dismissal was handled. Termination
of employment, could be unfair and unlawful, if there was compromise of principles of natural justice whether or not the contract
refers to the principles. (Grainger BS Nkwazi vs Commercial Bank of Malawi civil cause number 333 of 1999).
In Fair mount Investments Limited vs Secretary of State (1976) 2AER 865, it was said that if a party is adversely affected by any evidence and is given the right to comment on that evidence, the principle
of right to be heard is complied with.
When evidence is given as to why dismissal occurred it is clearly better if everyone is in general agreement, and this is better
sorted out before dismissal. The employer before dismissal is supposed to make sure that all the evidence is available and clear.
(Employment Law, James Holland and Stuart Burnett, Blackstone Press, 2000).
The principles of natural justice were properly incorporated in the defendants rules and regulations. These were further detailed
in a management guide for all officers to follows. They were actually therefore a term of the contract of employment between the
plaintiff and the defendant. The defendant's rules clearly stated that every officer was entitled to a hearing which would involve
informing the employee of the charge against him, making all reports available to the accused, hearing both sides and allowing cross
examination. All this was not done in the case of the plaintiff. According to the evidence of the plaintiff, he was asked to write
a report on the incident by the investigator and the manager. He was not shown any of the reports written by the employees including
the crucial reports by the commissionaire and the Customer Services Manager. He was never invited to any hearing nor was he given
an opportunity to cross examine those who gave conflicting report. Whilst on suspension and awaiting the disciplinary hearing the
plaintiff received a letter of dismissal. The lack of a clear charge was evident from the different reasons that were given for the
suspension, the dismissal and the upholding of the dismissal on appeal by the Chief Executive of the defendant company. The plaintiff's
evidence on lack of hearing was not in any way contradicted by the defence.
Even if the defendant were to argue that the earlier reports collected during the investigation were an opportunity to be heard this
would not satisfy the requirement of the law. Where facts of a case are in dispute, it is necessary to give an oral hearing to satisfy
the rules of natural justice or the duty to act fairly. A fair hearing becomes the employer's justification for termination of employment
where there is disagreement of facts. The duty to apply principles of natural justice does arise beyond the broader principle that
where one is to affect another's rights adversely for a reason, the other reasonably expects to be satisfied of the reason. In the
case of Grainger BS Nkwazi vs Commercial Bank of Malawi civil cause number 333 of 1999, it was said that the principles of natural justice, apart from the constitution, to our justice system and where necessary, should
receive deserved attention from courts.
In R vs Race relations Board, exparte Selvarajan (1975) 1WLR, 1686, it was held that the race relations Board was acting fairly in considering written witness statements as opposed to allowing an
oral hearing as the facts in the case were not in dispute. Where the facts are in dispute the requirements of natural justice seem
to stipulate an oral hearing.
In the present case, the defendant dismissed the applicant where the evidence as to who was responsible for the negligence that occurred
was in conflict. The plaintiff gave evidence that he reported what the commissionaire had said to him about the troublesome customers
to the Customer Services Manager. On the other side the Customer Service Manager denies that he was informed of this, although it
would not have made any difference to his judgment. The employer in this case should have summoned both the applicant and Customer
Services Manager to an oral hearing before reaching a decision to assess the credibility and demeanour of each side.
Further, there is a conflict of evidence between what the commissionaire is said to have said to the plaintiff and what the plaintiff
says as to what the commissionaire had told him. The defendant alleges that the commissionaire mentioned the real name of the alleged
fraudster to the applicant while the applicant say the commissionaire just said that the customer resembled another troublesome customer.
It is surprising to see that the defendant chose to believe the side of the commissionaire and not that of the plaintiff without
any explanation or without allowing the two sides with conflicting evidence to state their story in the presence of each other and
to cross examine each other.
Apart from being provided under the Bank rules, (Procedures for Gross Misconduct), this is also a fundamental principle of natural
justice that where the duty to act fairly demands an oral hearing, there is a right to cross examine witness. In R vs Board of visitors of Hull Prison, Expart St Germain (no2) (1979) 1 WLR 1401, it was held that where witnesses were giving hearsay evidence, fairness may dictate allowing the person affected the opportunity
to cross examine witnesses. However the plaintiff was denied even a disciplinary hearing contrary to the rules of natural justice.
In Mc William Lunguzi and another vs Attorney General MSCA civil application number 23 of 1994 (unreported), it was stated that section 43 of the constitution restates principles of natural justice that a man shall not be condemned unheard
and that these principles of natural justice ensure that the decision making process is fair.
It is also a general principle of law that a person who holds an inquiry must be seen to be impartial, that justice must not only
be done but must be seen to be done, that if a reasonable observer with full knowledge of the facts would conclude that the hearing
might not be impartial that is enough. Even if the decision-maker has not been biased at all, a decision may still be quashed if
they have any professional or personal interest in the issues, because justice must be seen to be done. In R vs Susses Justices, Expart McCarthy (1924)1KB256, a conviction for dangerous driving was quashed when it came to light that the justices clerk was a partner in the firm of solicitors
acting for the plaintiff in related civil proceedings, even though it was shown that there was not actual bias.
In a case of Moyes vs Hylton Castle Working Mens Social Club and Institute(1986) IRLR 483, two witnesses to an alleged act of sexual harassment by a club steward towards a barmaid were members of the committee which dismissed
the steward. It was held that it was a breach of natural justice for an apparently biased committee to hold the disciplinary matter.
In the present case the Customer Services Manager, (Mr Nkango) who was also involved and had the final say in the release of the
said money took part in investigations that finally led to the dismissal of the plaintiff. This is so because in giving evidence
partly using his witness statement, Mr Nkango told the court that he was personally involved in carrying out the investigations which
led to the dismissal of the plaintiff. In addition to this he also told the court that he personally obtained a written statement
from the commissionaire, which implicated the plaintiff. Nowhere in his evidence did he mention that he was requested to write his
own report as he was also involved in the matter. It is obvious that the Customer Services Manager was not a proper person to conduct
the investigations because he was connected with the alleged fraud. His involvement might and actually did prejudice the case against
the plaintiff and there was a very high probability of bias. The witness could also have been influenced by the need to protect himself
and therefore his evidence is unreliable.
The plaintiff also complained that he was unfairly singled out for disciplinary
despite being one of the persons involved.
This is so because the one who
actually authorized the payment of the money was not dismissed but his junior, the applicant who had only the authority to release
K200,000 and not anything above that. The Internal Investigations Officer, Mr Kamwana in his evidence confirmed that the Customer
Services Manager authorized the withdrawal on the strength of Mr Khoswe's scrutiny. The plaintiff gave evidence that when he was
given the authority to sign as "A" signatory he was told not to sign because another signatory has signed before him and/or
that he would be responsible for the Customer Services Manager's signature which was to come later after the plaintiff had signed.
Mr Nkango signed on the basis of the plaintiff's scrutiny, he was supposed to check the documents on his own to establish the withdrawal's
authenticity and the customer's identity. Mr Nkango and all other officials of the bank gave evidence that they did not find anything
wrong on the face of the documents that were presented for the withdrawal of the cash. The fraudster, if all he was one, played on
all bank officials involved in the transaction and the plaintiff it is obvious from any reasonable man that he could not have known
or detected the fraud after all the procedures he had taken. Mrs Unyolo, another defence witness actually admitted that none of the
officers who had handled the said matter at her branch detected the fraud. The plaintiff was victimized despite all the diligence
he exercised in handling the matter.
I hold different views because it was not only the plaintiff who was dismissed.
Even Kayira was dismissed. Of course Nkango was not affected. This may not necessarily point to discrimination but probably the explanation
of Nkango was more credible to the investigation officer than that of Kayira and the plaintiff. I would not subscribe to the view
that Nkango too should have been dismissed. Inasmuch as Nkango authorised the payment to the fraudster, it is clear that he did so
very much on the strength that the plaintiff had taken the necessary steps to verify the genuineness of the transaction. In my view,
the plaintiff had indeed taken diligent steps to verify that genuineness of the transaction although it later transpired that it
was a fraud by a trickster.
The plaintiff further submitted that the defendant's treatment of the plaintiff
was unjust and inequitable because they failed to consider the plaintiff's impeccable and clean record of twenty one (21) years with
the bank. No evidence was adduced by the defence on whether this factor was taken into account. The extent to which the plaintiff
has suffered was clear from his evidence on how he is struggling to get employed to date despite numerous applications for work.
This is above the loss of remuneration and a right to earn a living, the pension he had worked for in the 21 years, the dignity and
reputation accorded to the employee and the embarrassment of being labelled a failure. The length of time and the specialised nature
that the plaintiff was involved in all his career shows how difficult it is for the plaintiff to go elsewhere but in the banking
It is indeed sad that the plaintiff has suffered to the extent of being jobless
and being unfit material for employment. He could not have found himself in this situation if the defendant had exercised some little
justice and fairness. The high handedness manner in which the defendant treated the plaintiff has ruined the life of the plaintiff
immeasurably. The plaintiff deserves constitutional and statutory protection if his right to fair labour practice is to be of any
meaning. My specific finding of fact is that the dismissal of the plaintiff was unfair taking into account all the circumstances
surrounding the matter. If at all the plaintiff was negligent, I do not find it to have amounted to gross negligence to warrant such
a harsh decision. My view is that the plaintiff took necessary and reasonable steps in the execution of his duties. I do not believe
it that the commissionaire alerted the plaintiff that the presenter of the cheque was a fraudster. I opt to believe the version of
the plaintiff which in line with the steps he took i.e. seeking clearance from the domicile bank as well as verifying the genuineness
of the identification document which was used. The fact that the identification document used on opening the account was a passport,
it does not imply that the customer could not use other acceptable identification documents such as a driving licence. Further it
dos not matter whether or not Mrs Unyolo spoke with the plaintiff to clear the transaction. What is material is the fact that the
domicile bank had authorised the transaction that the account existed and funds were available to honour the transaction.
On the balance of probabilities the plaintiff has proved that he was unfairly dismissed from his employment. I order that the defendant
is liable to pay general damages for such unfair dismissal. The Registrar should assess damages.
The issue of costs is generally in the discretion of the court. Normally costs follow
the event. In this case the plaintiff has successfully pursued his claim and is entitled to an award for costs incidental to this
PRONOUNCED in open court this 26th day of August 2004 at Blantyre.