IN THE INDUSTRIAL RELATIONS COURT OF MALAWI
MATTER NO. IRC 193 OF 2002
TOTAL (MW) LIMITED ... RESPONDENT
CORAM: R. Zibelu Banda, Deputy Chairperson
Kalua for Respondent
Ngalauka Court Clerk
Procedure for dismissal- Rules of natural justice-Flouting of company regulations-Severance allowance.
The applicant Leticia Zolowere was employed by the respondent Total (Mw) Limited as Filling Station Supervisor on 4th March 1998. On 16th May 2002 her services were terminated on ground that she failed to report shortage of money to her superiors. There were also allegations of allowing staff under her supervision to roll the shortage for some time, irregularities in remittance of sales summaries; improper usage of top cards; and under declaration of metre readings. These short falls led to cumulative shortage of about K40,000.00 belonging to the company. The applicant was not satisfied with the reasons for dismissal and she filed this action claiming compensation for unfair dismissal, long service pay, medical bills and salary for May 2002. The respondent was heard and he disputed the claim stating that the applicants services were fairly terminated and that upon such termination she was paid all her dues including; one month salary in lieu of notice, leave days and pension.
The applicant averred that her services were unfairly terminated because she did not actually misappropriate the funds. It was one of staff under her supervision that had misappropriated the money and had promised to repay the company. She did not dispute that fact that she failed to report the loss when she first heard about it. The allegation against her was that she had failed to report the shortage when she knew about it. The applicant did not dispute the fact that she had been verbally warned before on allegations of similar nature. Further she did not dispute that there were some irregularities within the filling station where she was supervising, for instance, that she did not remit summary of sales to headquarters consistently as required and that her staff were under declaring metre readings and that at one time a fictitious top up card had be used to cover up shortage. These were matters, which the applicant as supervisor was supposed to check. However the evidence was that the applicant neglected such issues and therefore the company incurred loss to the tune of K40, 000.00.
When all these issues came to light the applicant was confronted and asked to explain. Her explanation was not satisfactory. Her employment was consequently terminated. In court she stated that she failed to report the loss because she was afraid that this could lead to her own account being deducted to cover for the shortfall. Apparently such shortfalls had happened before at the station and she paid for the shortages.
Before termination, the applicant had been warned and asked to improve in her performance. Until this time the applicant had failed to show much improvement. The respondents business was adversely affected by the loss that was occasioned due to the negligence. The applicant was invited to explain her position. She was informed of the allegations against her and she was given an opportunity to defend herself. It was after hearing the applicant that her employment was terminated.
Upon termination she was paid her notice pay for one month, she was paid salary for un taken leave days and her pension benefits were paid to her.
After assessing the facts and issues that arose in this case, the court finds that the respondent had proved that there was a valid reason for the dismissal in accordance with section 57(1) of the Employment Act, which states that:
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 respondent had also complied with rules of natural justice by giving the applicant notice of the allegations leveled against her and affording her the opportunity to defend herself in accordance with section 57(2) of the Employment Act which states that:
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.
The court finds that termination of the applicants employment was fair, it was done in accordance with the law and the applicants claim for compensation for unfair dismissal is dismissed.
The applicant claimed that she had not been paid all her terminal benefits upon termination. In cross-examination she admitted that she received her salary for May, her one-month notice pay, her salary for leave days and her pension. She informed court that she was not paid long service for the four years that she had worked for the respondent.
The long service that the applicant was claiming is severance allowance. The Employment Act section 35(1) makes provision for severance allowance. According to the schedule to section 35 she could get severance allowance if the pension to which she was entitled was less than severance allowance. The applicant received about K12,300.00 as pension benefit after tax. She had worked for the respondent for four years. Her salary at time of termination was K5700.00. According to the formula provided in the schedule to section 35 the applicant would be entitled to the equivalent of two weeks pay for each year of service. This comes to K9800.00. Obviously this is less than the pension benefit that she received. The law states that the applicant can only get the greater between severance allowance and pension. (See Banda and another v Blantyre Sports Club, IRC Number 197 of 2001 (unreported)). In the instant case, it is the pension, which she received because it was greater amount. Therefore the claim for long service is dismissed in its entirety.
The applicant claimed for medical bills, which she incurred after being attended to by a private medical practitioner. The respondent refused to pay for the bill because the applicant had received treatment from un authorized hospital. The respondent company had medical provision for its staff at all levels. The applicant was entitled to receive medical treatment at a designated hospital authorized by the respondent. When she got sick ion this occasion she deliberately without authority from her employer received treatment from un authorized hospital. This was in violation of the scheme provided by the respondent. The applicant has no claim for deliberately violating company policy. The claim for medical bills is thus dismissed.
Pronounced in Open Court this . day of .at LIMBE.
R. Zibelu Banda (Ms.)