EDRON A.Y. MANDA…………………………….……….APPLICANT
SOUTHERN BOTTLERS LIMITED…………..………RESPONDENT
CORAM: HON. M.C.C. MKANDAWIRE, CHAIRMAN
Applicant – PresentRespondent – Present (Represented by Mr. Malili)
Mr. Davie Mpakani – Official Interpreter
Matters in Issue : Unfair termination of employment and withholding of wages
This matter has been brought by Mr. Edron Manda who is the Applicant. The Respondent is Southern Bottlers Limited. In his Statement of Claim, the Applicant has raised a trade dispute of unfair termination of his employment and also that the Respondents are withholding his wages. In their response to the claim, the Respondents say that the Applicant’s employment was fairly terminated and that they are not withholding any of his wages.
SURVEY OF EVIDENCE
The Applicant has been in the employ of the Respondents since 18th November, 1997. By the time this case arose, he was at the position of Warehouse Clerk.
On the 28th of August, 2001, the Applicant was on duty and the Respondents’ truck No. 704 called at his place in order to be re-loaded. There were three of them who had to supervise the re-loading. Firstly, the driver salesman who brought the truck, secondly, a checker from the Grey Security and thirdly, the Applicant himself. As per the procedure, the driver salesman requisitions what he wants through a document known as a loading request. All the commodities that are needed are itemized on this document. When the commodities are brought from the warehouse, these three people have to physically check and verify before they are loaded on the truck. On this material day, all the commodities requested by the driver salesman were accordingly brought from the warehouse. They were physically checked by the three and loaded on the truck. The last load was that of Carlsberg brown. When the folk lift driver brought the last load of Carlsberg brown, the Applicant told this Court that the checker as well as the drive salesman did not physically check what was there in terms of numbers. Thus in order to test the sincerity of these people, he asked them how many crates were there of Carlsberg brown. They said 30. But in order to test them, he said 24. Thus these two believed that there were 24 crates instead of 30 and they recorded thus. But later on, as he was balancing the commodities on the documents, he amended the number 24 back to 30 because he had just been joking. As the truck was going out of the campus for sales, the senior checker at the gate found that there was a discrepancy between the actual number of crates of Carlsberg brown on the truck and the number indicated on the documents which the driver salesman had. He thus detained the truck and referred the matter to Management who later on brought the Applicant plus the sales driver before a disciplinary hearing on allegations of dishonesty.
The Respondents gave their evidence through Mr. Robertson Malili who is the Regional Personnel Manager. This witness told the Court that after having studied what had transpired on the 28th of August, 2001 as already explained by the Applicant, the Respondents were of the view that the Applicant in liaison with the driver salesman had conspired to attempt to steal crates of Carlsberg brown by deliberately understating them on the official documents. Management found that the Applicant deliberately misdirected the checker from Grey Security. This he said can easily be verified by looking at the explanation given by the security man during the hearing. A look at the document filled in by the security checker shows that he had written 30 crates at first but later on it was changed to 24 after the Applicant had deliberately persuaded him to alter the numbers. This was a calculated move which the Applicant knew in collaboration with the sales driver. As per the Respondents, the Applicant was fairly treated. He was brought before a disciplinary committee for a hearing and he tendered the outcome of the hearing as RES Ex No.1. The witness also tendered in evidence all the documents that were involved in this transaction and he said that a look at these documents would show that the Applicant plus the sales driver were up to dishonesty on that day. Had it not been for the Senior Checker at the gate, the Respondents would have lost 6 crates of Carlsberg brown. After the hearing thus Management found that the case warranted a dismissal.
In relation to the overtime payments not yet paid to the Applicant, Mr. Malili said that it was unfortunate that the Applicant had not pursued it with his office. If indeed he did that overtime, he certainly deserves to be paid.
The law is now very clear in relation to what one would call fair dismissal. Under Section 57 of the Employment Act, a dismissal shall be fair once the employer satisfies two conditions. These are:-
(a) That there are valid reasons given in relation to the conduct, capacity or operational reasons.
(b)That the employee has been given a chance to be heard and defend himself against the allegations made.
If these two are not met, then such a dismissal will be held to be unfair.
In this case, the matter has centred on the discrepancies that arose on the 28th of August, 2001in relation to truck no. 704. The important instruments in this case are the documents that have been tendered by both parties. A look at these documents clearly shows that there were drastic alterations from 30 crates to 24 crates. The Grey Security document was altered from 30 to 24. The explanation from Mr. Banda of Grey Security shows that he was literally persuaded by the Applicant to change the figures. The load request form also shows that it was first written 30 crates but later on changed to 24. The Applicant of course tried to tell the Court that he had deliberately misled his friends. I am afraid to say that the explanation given does not hold water. It can only be accepted by a kid and not by an honourable Court such as this one. The Court found that there was indeed dishonesty on the part of the Applicant hence the Respondents had valid reasons to institute disciplinary machinery because his conduct was contrary to the Conditions of Service. The Court has again looked at the procedure followed by the Respondents before they finally took a decision. The Applicant was brought before a disciplinary committee. He was made aware of the allegations against him and this was a charge of attempted theft of 6 crates. The Applicant was afforded a chance to be heard. Thus the Respondents fulfilled what is required under Section 57 of the Employment Act. They did not breach his statutory labour rights. This matter was fairly handled and it cannot be described as unfair dismissal.
The Court finds that the Applicant was fairly dismissed by the Respondents. In relation to the overtime payments, it appears that there is no real dispute about it. I do order that the Respondents in liaison with the Applicant should calculate his overtime dues and pay them through this Court within 14 days from the day they get the judgment herein.