The employment of an employee shall not be terminated by an employer unless there is a valid reason for such termination connected
with the capacity or conduct of the employee or based on the operational requirements of the undertaking.
The employment of an employee shall not be terminated for reasons connected with his capacity or conduct before the employee is provided
an opportunity to defend himself against the allegations made, unless the employer cannot reasonably be expected to provide the opportunity.
Article 4 of Termination of Employment Convention was part of our law in Malawi before the coming in of the Employment Act. In Kalinda vs Limbe Leaf Tobacco Limited (civil cause number 542 of 1995 (unreported)) Mwaungulu J said:
"In the absence of laws, Statutes or regulations, therefore, courts decisions make provisions of the Termination of Employment
Convention effective. This court is therefore conjoined to incorporate Article 4 of the Termination of Employment Convention enjoining
the employers not to terminate the employment of an employee unless there is a valid reason for such termination connected with the
capacity or conduct of the employee or based on the operational requirements of the undertaking................."
In establishing whether the reason given for dismissing the employee was a substantial
and valid reason, the court looks into several factors. The factors include inter alia the gravity of the conduct given as a reason for dismissal and the duration of the employment of the employee. In Granger Nkhwazi vs Commercial Bank of Malawi civil cause number 233 of 1999, the position was put thus by the court:
"where the employer explicitly or tacitly terminates for misconduct, the employer's election to terminate according to the contract
or to afford the employee procedural and substantive fairness under the contract must depend on principle and the circumstances of
the case. The principle must be one leaning towards affording the employee procedural and substantive fairness. The employer can
then say to all and sundry that she has done the right and fair thing. The circumstances are difficult to circumscribe. They will reflect the gravity of the conduct, the nature of information between the
parties and the duration of the employment. The list is not exhaustive".
The rule was further extended in Kalinda vs Limbe Tobacco Limited thus:
"Requiring reasons, because of the right to natural justice, becomes, as this
court pointed out in Nkwazi vs Commercial Bank, stringent where, on the facts the employer as here and in the Nkwazi case terminated under the contract and accuses the employee of misconduct. Where the employee committed misconduct terminating employment
under the contract is a favour. Where the employee protests the misconduct either because the employer overlooked fairness procedures
or, where followed, truth was mulcted; the potency of the rule about termination according to terms is muted indeed............."
JUSTIFICATION FOR DISMISSAL
Sometimes the employer can terminate the employment of an employee due to a single
act of misconduct. In such a scenario the issue will involve around whether the servant's breach of contract was repudiatory. Whether
it was sufficiently serious to justify dismissal. That depends on the circumstances. See: Laws – vs London Chronicle (Indicator Newspapers) Ltd  2 ALLER 285. Wilson vs Racher  ICR 8. And if not justified the dismissal is wrongful. In Clouston & Co. Ltd vs Corry  AC 122, Lord James of Hereford delivering judgment of the privy Council said:
"Now the sufficiency of the justification depended upon the extent of misconduct. There is no fixed rule of law defining the
degree of misconduct which will justify dismissal. Of course there may be misconduct in a servant which will not justify the determination
of the contract of service by one of the parties to it against the will of the other. On the other hand, misconduct inconsistent
with the fulfilment of the express or implied conditions of service will justify dismissal...................It is clear and sound law that to justify dismissal for one act of disobedience or misconduct it has to be of a grave and serious
The court usually examines the reason given for termination of employment and the
act of misconduct and try to find out if the termination is justified. If the reason is not supported by the evidence the court may
conclude that there was no justification for the plaintiff's dismissal. This was the case in Mvula vs Norse International Ltd 15 MLR 331, at p.336 to 337 per Makuta CJ:
"In the instant case, plaintiff was dismissed because of misconduct. The first particular of misconduct is that he used the defendant's
transport without permission. Throughout the trial there was no evidence which was adduced to substantiate this allegation. No vehicle
was mentioned. Not even the slight allusion to misuse of a vehicle was made. This allegation is therefore without substance............in
view of the foregoing, I am of the opinion that, on the balance of probabilities, there was no justification for the plaintiff's dismissal.
The dismissal was wrongful".
The court in determining whether the reason for dismissal is justified may examine
if the plaintiff was the one who was in charge of the transaction alleged to be the reason for his dismissal. In Nkwazi vs Commercial Bank of Malawi Limited the court said:
"..............Moreover, the reason is not reasonable in the circumstances. The evidence shows nothing to associate the fraud
with the plaintiff. The plaintiff was a data capture clerk.
He was responsible for ledgers where the forged cheque transaction occurred. Somebody else handled the crucial aspect of the particular
transaction............The employer, could at common law have raised and proved another reason at the trial. The employer had not, in my judgment raised
It is for the employer to show the reason for dismissal. If there is more than one
reason he must show the principal reason for the dismissal. The reason must be a substantial reason of a kind such as to justify
the dismissal and it is for the court to determine whether the employee has acted reasonably in dismissing for the reason which is
determined in accordance with equity and the substantial merits of the case. Smith vs Hayle Town Council  1LR 996.
The employer needs to show a reason for dismissal, and the reason must be a substantial
one. This test "is designed to deter employers from dismissing employees for some trivial or unworthy reason". Gilham v Kent County Council (No 2) (1985) 1LR 233 per Griffiths L.J.
What needs to be established is the factual basis for the dismissal. The legal classification usually follows quite easily. If the
factual basis cannot be explained then there is a real problem. Carlin vs St Cuthbert's Co-operative Association Ltd  1RLR 188.
Although sometimes an employee has been given a right of hearing questions might
arise whether the hearing was sufficient in light of allegations made and also the length of length of the employee's career with
the employer. The employer is thus under an obligation to abide with the principles of natural justice matching the allegation levelled
against the employee. In Kalinda vs Limbe Leaf Tobacco Malawi Limited Mwaungulu J put, the rule thus:
The question Counsel poses entails considering the effect of the common law rule that an employer need not give reasons when terminating
employment under contractual terms on an employee's right to fair labour practice under Section 31 no problems arise from the innocuous
part of the rule, namely, where the parties are ad idem. The problem arises where the employer's termination masquerades an unfairness which only a right to natural justice can disgorge..........".
The learned judge then continued to analyse the facts of the case vis-
-vis the right of hearing as follows:
"On the facts of the case, it is clear to my mind that the letter terminating the employment gave a reason for terminating the
terms of contract. It is clear, however, from the letter preceding the termination and the events before this that Mr Kalinda, who
the evidence shows to have had a long and illustrations career with the employer company was suspended because of an allegation that
he stole cement from the company on the premises of Limbe Leaf Tobacco Limited. In my judgment, given the nature of the allegation, Mr Kalinda's long and illustrious service with the company and the threat to Mr
Kalinda's livelihood and reputation then more should have happened.................What I understand Mr Kalinda to be complaining about is that he was not given an opportunity to answer the allegations,............and
consequential as these have been shown to be, made against him. The unfairness therefore is in that procedurally Mr Kalinda was not given an opportunity to answer adequately to these serious allegations.
The original understanding of the concept of natural justice is based on public law and understanding that the procedural fairness
required should be as close as possible to the juridical process. It is clear that rigidity need not be in cases of the nature this court is dealing with suffice to say that the extent to which the right to natural justice has been achieved in a particular case will depend on the nature of the
allegation, the evidence in support and other surrounding circumstances. Obviously, more is required for serious allegations which
affect the reputation and livelihood of an employee. The question in this matter is whether as the employee contends Limbe Leaf Tobacco Limited did abide with principles of natural
justice matching the allegation against Mr Kalinda".
The court then concluded that Limbe Leaf Tobacco Limited did not accord Mr Kalinda a right to be heard matching the allegations made
against and the consequent decision to dismiss him.
APPLICATION OF THE LAW TO THE EVIDENCE
Whether the defendant was in breach of the plaintiff's constitutional right to fair and safe labour practices?
My short answer is – Yes. The two witnesses for the defendant did not seem
to have a right and proper meaning of the remarks "engine ceased". Naturally it is an engineering jargon meaning dead engine
and not without engine. It should have been the duty of Mr Longwe to ask where the engine was but because he did not himself understand
the terminology, he did not bother to ask about the whereabouts of the ceased engine since it was not mounted on the vehicle.
Whether the defendant discharged the burden of providing the plaintiff with a substantial and valid reason for the plaintiff's dismissal
Again on the evidence, the defendant failed to do so. It is clear from the evidence of the plaintiff and his witness that the plaintiff
was not involved in the classification of the scraps and fixing values. He was not involved in the auction preparatory committee.
He is being unfairly accused simply because he was in the Engineering Department. The burden is on the defendant to prove that the
plaintiff abused his position and that he cheated. The ill feelings and suspicions which the defendant had on the transaction with
Mr Chipeta were transferred to the plaintiff.
Whether the defendant's act dismissing the plaintiff from employment is justified on the case?
The defendant has failed to justify dismissal.
Whether the defendant's act dismissing the plaintiff from employment was reasonable and in accordance with the substantial merits
of the case?
The defendant acted unreasonably particularly to their long serving member of staff
having a clean record for 28 years. Even, if it were correct that there was deceit on his part, which is not the case here, the recommendations
of panel were more reasonable than the management decision to dismiss the plaintiff. The decision of management lacked merit and
finds no support in the evidence.
Whether on the facts of the case the defendant fully complied with the rules of natural justice?
These rules are wide encompassing so that justice must not only be done but be seen
to have been done. Although the plaintiff did not have problems with the panel that interviewed him, bias can be detected from the
composition of management team which made the decision to dismiss the plaintiff because some of the very same members who investigated
the matter were in the decision making body. Management was not totally independent of the investigations body so as to avoid appearance
of bias and prejudice.
This court is convinced that the defendant as a public body should not have rushed into making a harsh decision without proper observation
of principles of natural justice. Further, constitutional provisions ought to have been observed and particularly where an International
Labour Convention clearly provided for a duty on the defendant to be reasonable before dismissing an employee. I hereby declare that
the defendant's act of dismissing the plaintiff on unfounded allegation of deceit or mere suspicion that the plaintiff was deceitful
is an unfair labour practice and a breach of the plaintiff's constitutional right.
Since the plaintiff landed into a better paying job than his employment at MHC, the court can only order nominal damages. However,
without undermining the humiliation and suffering which the plaintiff underwent particularly to his reputation and also considering
the length of service he honestly and with dedication gave to the defendant, a small sum of K150,000.00 would be sufficient award.
The defendant is also condemned in costs of this action.
PRONOUNCED in open court at Blantyre this 31st day of August 2004.