IN THE INDUSTRIAL RELATIONS COURT OF MALAWI
MATTER NO. IRC 328 OF 2002
CHISALE ... . APPLICANT
MALAWI TELECOMMUNICATIONS LTD . RESPONDENT
CORAM: R. Zibelu Banda (Ms), Deputy Chairperson
Nindi, Assessor, Employers Panelist
Nyirenda, Assessor, Employees Panelist
Sitima, Communication Workers Union.
Malijani for the Respondent
Purshortum assisting Malijani, for the respondent
Ngalauka Court Clerk
Justification for dismissal- Valid reason must be provided- Burden of proof- Employer to prove reason for dismissal- Substantive and procedural fairness to be complied with-Remedies- Reinstatement-Factors to consider in reinstatement.
The applicant was employed by the respondent as driver in 1986. His employment service was terminated on 25 July 2002. The reasons for termination were that the respondent had lost trust in the applicant. The reason for the loss of trust was because the applicant had obtained five litres more fuel than what was allocated to him through a fuel coupon.
It was the evidence of the applicant that he had collected a fuel coupon for 10 litres. When he took the car for refueling, the fuel attendant pumped in 15 litres instead of 10 litres. The applicant realized the mistake but he did not immediately take measures to rectify the mistake. When this anomaly was discovered by the respondent, it instituted an inquiry and later three disciplinary hearings into the matter were heard. The result of the inquiry and the hearings was the applicants dismissal.
The respondents witness testified that the applicant was seen at a place that was notorious for illegal trading of fuel. He suspected that the applicant had gone to this place with the intention of pumping out fuel from the car and selling it. He did not actually see the transaction nor did he give evidence or proof that the applicant had pumped out any fuel from the car. In the respondent counsels submission, she explained that the only reason the applicant was found at this notorious place was to sell fuel. Selling of fuel was an act of fraud and contrary to Article 35.13 of the Conditions of Employment.
The issue before court was to determine whether the allegation leveled at the applicant was enough ground to warrant dismissal. The applicant submitted that the respondent did not have a valid reason for terminating his employment services. The respondent on the other hand contended that getting more fuel than was allocated was fraud and that being seen at a place notorious for illegal dealing in fuel was also fraud as it led to a conclusive presumption that the applicant was selling respondents fuel.
Section 57(1) of the Employment Act provides 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 burden of proving the reason for dismissal is on the respondent and not on the applicant as alleged by the respondent in its submissions. The applicant only needs to say that his dismissal was unfair because the reason or principle reason for the dismissal was not valid.
This burden of proof is a prerequisite principal of evidence stipulated in section 61(1) of the Employment Act, which states as follows:
In any claim or complaint arising out of the dismissal of an employee, it shall be for the employer to provide the reason for dismissal and if the employer fails to do so, there shall be a conclusive presumption that the dismissal was unfair.
In Earl v. Slater and Wheeler (Airlyne) Ltd  1 WLR 51, it was held that, the duty is on employer to provide reasons for termination. If no reasons are furnished, there is a presumption that the termination is unfair. The respondent had a legal obligation to rebut this presumption on a balance of probabilities.
In the instant case, the court found that the respondent failed to show on a balance of probabilities that the reason for dismissal was valid. The court could not agree with the respondent that collecting five litres more fuel than was allocated on a coupon was ground enough for dismissing an employee. Apart from this one incident there was no proof that the applicant had been warned or had been involved in any case of misconduct during the 16 year period that he worked for the respondent. When dealing with misconduct cases the employer must be very careful when meting out punishment. The punishment must fit the offence.
In Polkey v A E Dayton Services Ltd  3 All ER 974,at 983, the House of Lords quoted with approval the following factors of Neill LJ sitting in the court of appeal in the same case  1 All ER 984 at 989:
Where an employee is dismissed for alleged misconduct and he then complains that he was unfairly dismissed, it is to be anticipated that the industrial tribunal will usually need to consider (a) the nature and gravity of the alleged misconduct, (b) the information on which the employer based his decision, (c) whether there was any other information, which that employer could or should have obtained or any other step which he should have taken before he dismissed the employee.
In the instant case, the respondents only reason for dismissal was neither serious nor grave. It was a one-off incident involving a small amount of fuel and no proof was provided that he had misused that extra fuel, which he collected. The respondent did not show how the extra five litres of fuel adversely affected its operations or how it constituted a fraud on the part of the applicant when the applicant did not actually pump the fuel from the fuel tank to the car. It was a fuel attendant who pumped in the fuel.
The respondent stated that because the applicant was seen at a place well known for illegal fuel transactions then he must have engaged in selling fuel from the car he was driving. This information was flawed in that it did not state that the applicant had actually been seen selling fuel. The witness did not even attempt to confront the applicant at the scene of the crime nor did the respondent try to verify whether fuel and how much of it had been misused or sold out by the applicant. This piece of evidence lacked any foundation and was totally disregarded by the court.
There was no other information that the respondent used to reach a decision of dismissal. The applicant had no previous misconduct cases against him to aggravate his case. There was virtually no substance in law in terminating the employment service of the applicant.
It is established at the Industrial Relations Court that a dismissal must comply with both substantive and procedural fairness in order for the court to find for the respondent employer. See, Prindella v Limbe Leaf Tobacco Company Limited (IRC Number 49 of 2002 (unreported)). Compliance with one and not the other will not vindicate the employer respondent.
In this case, the fact that a number of hearings were conducted including an investigation could not on their own make the case for the respondent. There was need for substantive justice, by proving a valid reason in law to justify a termination of employment. See the following local cases: Ludoviko Banda v Dwangwa Cane Growers Company (IRC Number 18 of 2001 (unreported)), Msiska v Dairiboard Malawi (IRC Number 6 of 1999 (unreported)) Masina v Kabula Foods Limited (IRC Number 31 of 2002 (unreported)).
The reason for dismissal was not valid and therefore the respondent violated section 57 of the Employment Act. According to section 58 of the same Act, such violation renders any dismissal unfair. The court unanimously found that the dismissal of the applicant was unfair.
The Employment Act provides that an employee who succeeds in unfair dismissal case be provided with a remedy. There are basically three kinds of remedies. These are; remedy of reinstatement, re-engagement and compensation. Reinstatement is where the employee is placed back to his original position in the respondent employment. All benefits and privileges are restored back including arrears for when that applicant was on unfair dismissal. Re-engagement is slightly different because it entails putting back the employee in the respondent company but not necessarily at the same position as before. In reality reinstatement and/or re-engagement are seldom used. This is presumably because industrial realities often militate against reinstatement. An employer cannot be forced to take an employee back on even if reinstatement was ordered. Similarly, an employee cannot be forced back to work with an employer. Reinstatement must be ordered only when it is practicable. See, Keith Banda v Bible Society of Malawi, (IRC Number 10 of 2000 (unreported))
It has been established elsewhere that reinstatement is normally not practical especially where:
· Re-instatement would provide serious industrial strife or cause profound disruption within a very small business or organisation;
· The individual to be reinstated is a senior employee in the establishment as compared to a general duties unskilled worker.
The applicant was a mere junior employee working as a driver. He was not involved in decision-making or with management of the respondent company. He would not be in frequent personal contact with management and therefore there is unlikely to be a conflict or serious industrial strife if he is reinstated. Further, the court took judicial notice of the fact that the respondent company is quite big and has various branches and divisions in most parts of Malawi. The applicant could be transferred away from the base where he was operating before the unfair dismissal, to reduce any contact with the previous people with whom he was working.
It is the order of the court that the respondent reinstate the applicant with immediate effect. Failure to comply with this order will attract further legal sanctions from this court.
Pronounced in Open Court this day of ... 2003 at LIMBE.
R. Zibelu Banda (Ms). Deputy Chairperson .
Nyirenda, Assessor, Employees Panelist
Nindi, Assessor, Employers Panelist .