IN THE INDUSTRIAL RELATIONS COURT OF MALAWI
MATTER NO. IRC. 18 OF 2000
KACHINGWE ... APPLICANT
SHIRE BUS LINES . RESPONDENT
CORAM: R. Zibelu Banda (Ms), Deputy Chairperson
Nindi Employers Panelist
Chingoma Employees Panelist
Macheso for Respondent Human Resource Manager
Ngalauka Court Clerk
Dismissal- Summary dismissal-Reasons for dismissal-Previous warnings- Procedure for dismissal- Investigation- Right to be heard--Disciplinary hearing-Appeal- Severance allowance.
The matter came for determination of the manner of termination of applicants employment contract with the respondent. The applicant was employed as a messenger in April, 1989. His employment was terminated on 13th August, 1999 while he was serving as fuel attendant for the respondent. The reasons for termination were failure to explain a shortage of 129 litres of fuel on a fuel pump, which he was attending and deception.
The applicant contended that the dismissal was unfair basing on the following grounds: His supervisor reported the shortage to senior management before discussing the issue with him; another fuel shortage was wrongly attributed to him; he was charged with a morning shift attendant while the shortages occurred during different times; management did not call as a witness a metre reader during the applicants shift; and he was not given an opportunity to appeal against the decision to dismiss him summarily.
The respondent contended that they were entitled to summarily dismiss the applicant because he incurred a shortage of 129 litres fuel and after the shortage was known to him he deceitfully attributed the fuel to a recovery bus. At a disciplinary hearing he admitted that in fact he had not allocated any fuel to the recovery bus. He however could not explain how the shortage had come about. This was gross negligent of duties which occasioned loss to company property, and he was in breach of trust by attempting to deceive the company.
Assessment of Issues
It is clear from the facts that the applicant was dismissed summarily for gross negligence and deception. When shortage was discovered he was called before a disciplinary hearing. Present at the hearing were union members, the applicant and management from the respondents company. He was asked to explain his side of the story, which he did. He did not deny the allegations. He actually admitted knowledge of the shortage and his attempt to cover up the shortage through deceit.
The applicants grounds for challenging the dismissal have no legal basis. The court observed that since the matter was serious it was proper for the applicants supervisor to report it directly to management. There was no anomaly in this procedure. The facts were clear that the case of the applicant was dealt with separately from the other case, therefore the applicant can not claim that he was charged with another person. The applicant admitted a shortage of 129 litres of fuel and therefore the shortage of the other employee could not have been attributed to him. The other employees shortage was 100 litres. If this shortage had been attributed to applicant the allegation would have been for 229 litres and not 129 litres. Further, there was no need for the respondent to bring in a witness who they did not require, like the metre reader. Finally, the applicant alleged that he was not given an opportunity to appeal against the dismissal.
In the dismissal letter he was advised to appeal against the decision if he was aggrieved. He tried to exercise this right, but he never had the opportunity to sit before an appeals committee. It was the reasoning of respondent that when the applicants case was brought before the Chief Executive to consider his appeal. The Chief Executive was of the view that the matter did not require further hearing by way of appeal. The facts were clear and the applicant had no excuse for what he had done. He had admitted the allegation including that he had tried to deceive the company. The matter was straight-forward and clear, the appellate body decided against hearing the applicants appeal.
This cause of action arose before the Employment Act 2000. Therefore the provisions of the old Act of 1968 will be used where applicable, the Constitution, common law and good industrial practice.
The law and good industrial practice demand that an employer must give reasons before dismissing his employee. This requirement allows the applicant to defend himself against the allegation or reason for the dismissal. Section 43 of the Constitution states that before administrative action is taken, reasons must be given. Interpretation of this provision was ably provided by the Malawi Supreme Court of Appeal in Dr Chawani v. The Attorney General ( MSCA Civil Appeal No. 18 of 2000 (unreported) )
Further, Articles 4 and 7 of Convention No. I58 of International Labour Organisation, Concerning Termination of Employment at the Initiative of the Employer provide that reasons must be given for dismissal of an employee and s/he must be afforded an opportunity to be heard. In Earl v. Slater & Wheeler Ltd 1 WLR 51, the court held that the burden is on the employer to show the reasons for dismissal.
In the instant case, the respondent brought allegations of fuel shortage to the applicant before he was dismissed. An investigation was carried out, and it turned out that the applicant was on duty at the time the fuel shortage was occasioned but he failed to explain the shortage. Instead he informed his supervisor that the fuel had been allocated to a recovery bus. Upon investigation it was discovered that the fuel had not been allocated to the recovery bus. In explaining his side the applicant informed his superiors that indeed he had not allocated any fuel to the recovery bus. He lied in order to cover up the loss because it was difficult to ascertain whether the recovery bus had been fueled since it did not have a way bill.
The facts are clear that the applicant was heard by an impartial disciplinary committee, which, comprised members of employees organization among other members. This procedure complied with the law and good industrial practice. (See Prindella v. Limbe Leaf Tobacco Company Limited, IRC No. 49 of 2002 (unreported).)
The offence was a serious misconduct because it involved a combination of gross negligence and breach of trust. Therefore, the court unanimously found that the respondent was entitled to dismiss the applicant summarily. Although an appeal procedure forms part of the whole process of dismissal, the respondent could not be faulted for failing to hear the applicant on appeal. The matter was serious and the applicant himself had admitted the allegations, which had been proved through a thorough investigation. The purpose of an appeal is to question the procedure or facts relied on by the trial tribunal in reaching a decision. The applicant did not show in court what matters he was trying to appeal against other than the grounds he brought into court, which, the court unanimously found were unfounded and without any legal basis.
The court unanimously found that the respondent had shown the reasons for dismissing the applicant. The court found that these reasons were valid and combined with previous warnings given to the applicant for misconduct constituted serious misconduct warranting summary dismissal. In determining the validity of grounds for dismissal, a court can consider previous warnings given to the employee although the warnings were for unrelated misconduct.
Consultation and warnings are relevant in a number of different cases including dismissals for misconduct. An employer is entitled, moreover, to have regard in a misconduct case to the fact that the employee has received a previous warning in deciding whether or not to dismiss. This is so even where, that previous warning related to behaviour which, was different from that which is the potential basis for dismissal. (See Edwards M. ed. Dismissal Law; A Practical Guide For Management, 1991, Kogan Page, London at 126 to 127.)
In the instant case, the applicant admitted to have been warned on two previous occasions for misconduct. These two warnings were not related to the misconduct that caused the dismissal. However, an employer is entitled to consider previous warnings in determining an employees misconduct case. It follows that a court can consider those factors in determining whether the employer acted fairly in dismissing the employee.
The applicant is entitled to only those benefits, which he was entitled to under his contract of employment. In this regard, there was proof that he received his pension contributions and salary up to the day of his dismissal.
The applicant is not entitled to severance allowance nor is he entitled to notice pay because he was dismissed summarily. Order 5 © of the Wages and Conditions of Employment (Severance Pay) Order made under section 5 of the Regulation of Minimum Wages and Conditions of Employment Act stipulates that an employee shall not be entitled to severance pay where s/ he is dismissed summarily. (See Mussa v Securicor Malawi Limited. IRC No. 2 of 2000 (unreported))
Pronounced in open court this . day of .. 2003 at LIMBE.
R. Zibelu Banda Ms.
J. Chingoma (Ms.)