Charles Kazembe v Auction Holdings (Matter No. 13 of 2001) (13 of 2001) [2002] MWIRC 35 (12 July 2002);

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IN THE INDUSTRIAL RELATIONS COURT OF MALAWI

LILONGWE REGISTRY

MATTER NO. 13 OF 2001



BETWEEN:



CHARLES KAZEMBE…………………….……………….APPLICANT

and

AUCTION HOLDINGS…………………………………RESPONDENT



CORAM:   HON. M.C.C. MKANDAWIRE, CHAIRMAN
                  Applicant – Present
Respondent – Present (Represented by Counsel Likongwe)
George Chapalapata – Official Interpreter


J U D G M E N T

         Matters in Issue : Claim for wrongful dismissal (unfair termination)

         Introduction

         This matter is brought by Charles Kazembe the Applicant, against Auction Holdings Limited the Respondents. In his Statement of Claim, the Applicant says that he was wrongfully dismissed therefore he would like this Court to order that the Respondent should pay him notice of pay, leave pay and that they should also furnish him with reasons for the dismissal. The Respondents have denied the allegations made by the Applicant.


         Survey of Evidence

         The Applicant was employed by the Respondents as a Machine Operator on 15th November 1995. He later got elevated to the rank of garden boy which saw him work at different residential houses for senior officers of the Respondent. When the matter herein arose, the Applicant was working at the house of Mr. Kammalere. On the 10th of September 1999, the Respondents had an official party at their head office at Kanengo in Lilongwe. This appears to be an annual event. The Applicant went to attend this party and reported back for work on the 11th of September. When the Applicant reported for work; he found that all his utensils for work were missing from the small storeroom which was being used at his place of work. Also missing was a horse pipe plus his uniform. The Applicant reported the matter to his boss Mr. Kammalere who he says assured him that he would report at his place of work. At a later stage, the Applicant was confronted by his bosses about the missing items. Together with the night watchman on duty, they were asked to give statements. The Applicant’s statement is tendered in evidence. The watchman gave two statements which were conflicting. In the first statement, he said that when he reported for work, he did not find the items in the storeroom. In the second statement, the watchman said that he found the items in the storeroom but during night hours there came armed robbers who stole the items.

         The two were brought before a disciplinary hearing and later on they were dismissed. In relation to the Applicant, he was charged with the offence of failing to account for company property. After the termination of the Applicant’s employment which was through a letter, the Respondents paid him the following:-

(a)     
Payment for all the days worked up to the 1st of November, 1999;

(b)     
One month’s salary in lieu of notice. The Respondents however deducted the cost of the lost items from these payments.

THE LAW

It is clear under Section 31 of the Constitution that every person is entitled to fair labour practice. This matter arose in 1999 when this constitutional provision was already in force. The old Employment Act which was repealed in September 2000 did not contain any statutory rights in relation to what the employer would do before the termination of employment. The Employment Act 2000 does however contain a specific provision in Section 57 as to what would amount to fair or unfair dismissal. The Court shall thus heavily rely on Section 31 of the Constitution because it would be wrong to apply the provisions of Section 57 retrospectively.

ANALYSIS

The evidence on record is very clear that on the 10th of September 1999, the Applicant left a horse pipe on watering the grass and off he left for the party at Kanengo. The Applicant only came back to work the following day. In his evidence in-chief, the Applicant introduced a new subject matter that because the owner of the house Mr. Kammalere was in the habit of moulding bricks, he was now and again left with no option but to leave the horse pipe as he did. The Applicant further said that on this particular day, he was informed by the wife of Mr. Kammalere to leave the horse pipe as he did. The Court found it very difficult to believe the Applicant on this point. The Applicant was given two opportunities by the Respondents. Firstly, he wrote his own statement as to what had happened. He never mentioned about the issue of bricks and about Mrs. Kammalere. Then there came a detailed hearing at the boardroom where the Applicant was formally charged. He never mentioned about the bricks and Mr. Kammalere. It is really difficult to swallow his story today. The Court takes it that the Applicant just left the horse pipe unattended to and off he dashed for the party.

When the things were lost, the Applicant did not bother to make a report to his office. He of course says that he reported direct to Mr. Kammalere. But that was not enough. He had not received those items from Mr. Kammalere. He was not at all employed by Mr. Kammalere. His masters were the Respondents. His conduct was indeed in issue and any reasonable employer should have raised eyebrows.

The Court has looked at the procedure that was followed by the Respondents before they terminated his employment. The Applicant was given adequate opportunity to be heard. He first gave a written statement. Then there was the formal hearing where he and the watchman were charged. They both defended their side. Later on a decision was taken. This Court finds that the Respondents complied with what would be defined to as fair labour practice. They had valid reasons to charge the Applicant which they did. They afforded the Applicant with an opportunity to be heard. As regards the deductions made, they were indeed entitled to effect those in order to make good the loss incurred due to the negligence of the Applicant. As regards reasons for the termination, the Applicant was made aware of the reasons. The Court finds that this was fair termination. The Applicant’s case therefore fails.

DELIVERED this 12th day of July 2002 at Lilongwe.






M.C.C. Mkandawire
HON. CHAIRMAN