Chitembeya v Malawi Posts Corporation (IRC 87 of 2001 ) (87 of 2001) [2004] MWIRC 12 (04 October 2004);

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IN THE INDUSTRIAL RELATIONS COURT OF MALAWI


PRINCIPAL REGISTRY


MATTER NO. IRC 87 OF 2001


BETWEEN:


CHITEMBEYA……………………………………………. APPLICANT


-and-


MALAWI POSTS CORPORATION…………………… RESPONDENT



CORAM: R. Zibelu Banda (Ms), Deputy Chairperson

Limbe; of Counsel for respondent

Applicant; present
Mbewe; Court clerk


JUDGMENT

Dismissal- Reason for dismissal-Misconduct-Procedure – Right to be heard- Right to confront accusers- Investigations-When to investigate-Disciplinary action-Who makes final decision-Basis for decision to dismiss-Previous acts of misconduct-An employer can take previous acts of misconduct into consideration when dismissing.


Facts

The applicant was employed in 1986 as messenger for the respondent. He was dismissed on 20 July 2001. The grounds for dismissal were insubordination and rudeness to members of the general public that tarnished the respondent’s image. The applicant was paid notice pay, pension contributions and accrued leave pay. The applicant was dissatisfied with the dismissal mostly because he did not agree with the reasons for dismissal and also because the disciplinary committee that heard his case recommended that he be cautioned and transferred to another station where he could be closely monitored. The respondent on the other hand tried to show that the allegations of misconduct against the applicant were valid and that the disciplinary committee did not have power to make a final decision after the disciplinary hearing, all they could do was recommend and that management had the ultimate authority either to approve or disapprove the recommendation.


The Law

Reason

The case is covered under section 57 of the Employment Act because it deals with termination of contract. That section 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 employer, see section 61 of the Employment Act, which places the burden of showing the reason for dismissal on the respondent. It was held in Earl v. Slater and Wheeler, [1973] 1 WLR 51, that:


“It is for the employer to show what was the principal or only reason for dismissal…. and that it was a potentially valid reason…. If the employer fails to discharge this burden, the tribunal must find that the dismissal was unfair.”


The reason must have been known to the applicant at the time of the dismissal and not after the dismissal. This is because where an employee is told in advance the reason for which adverse action might be taken against him, he is able to prepare and defend or explain himself, see section 43 of the Constitution and the Supreme Court of Appeal decision in Chawani v The Attorney General (MSCA No. 18 of 2000, per Tambala JA, that:


“The purpose of section 43 is clearly to ensure transparency in decision making where the decision is likely to infringe the rights, freedoms, interests or legitimate expectations of others. The section was also intended to enable persons affected by administrative actions to have adequate opportunity to defend themselves effectively. A person would be able to present a good and effective defence to an administrative action when he knows the reason supporting the action.”



In this case the respondent alleged that the applicant was told of his misconduct and was in fact invited to answer his case at a disciplinary hearing that was constituted. According to the minutes of the hearing, the allegations against the applicant arose from a complaint from a member of the public. The Court heard in evidence that the complaints against the applicant were that he was insubordinate to his Postmaster and was rude to members of the general public. These allegations were acts of serious misconduct, which if left unattended would affect the operations of the respondent that is a service provider.


Insubordination; is serious misconduct that entitles an employer to dismiss. It is a serious industrial misconduct to refuse to take lawful instructions from employers. Section 59 of the Employment Act provides that willful disobedience to lawful orders given by the employer is ground for summary dismissal.


This Court held in Mussa V Securicor Malawi [Matter No. IRC 2 of 2000 (unreported)] that insubordination calls for summary dismissal. The Court further held in that case that:


“text books by renowned authors on Dismissal Law have also expressed the seriousness of such misconduct. See for example, Edwards M. ed. Dismissal Law; A Practical Guide For Management (Kogan Page, London, 1991 at 150) where willful disobedience of lawful and reasonable orders is categorized as a misconduct warranting summary dismissal.”


This is the position taken in other jurisdictions as well, for instance, in the English case of Pepper v. Webb (1969) 2 All ER 216, the appellate court held that the employer was justified in summarily dismissing an employee for willful disobedience of lawful and reasonable orders. In that case the employee, a gardener was asked to plant some flowers but he refused.


The respondent’s operations demand that its employees be of good character and service to members of the general public whom they serve. It is therefore imperative for the respondent to ensure that its officers in all post offices are well behaved and provide not just service but good service to the members of the general public. Therefore the respondent is entitled to discipline any of its officer accused of ill-treating members of the public.


The Court finds from the above that the respondent had reasons to discipline the applicant. The fact that the respondent had these reasons was not enough to take punitive measures against the applicant. They were required by law to make inquiries into the allegations before dismissing.


Procedure

In addition to proving that an employee was dismissed for reasons stated in section 57 (1), an employer shall be required to show that in all circumstances of the case he acted with justice and equity in dismissing the employee, (section 61 (2) of the Employment Act).


The law provides that in all cases of misconduct, the employer must provide the employee with an opportunity to state his case and defend himself. Section 57(2) of the Employment Act provides 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.”



Therefore the employer must comply with provisions of section 57(2) of the Employment Act. The England Appeal Court in Polkey V A E Dayton Services Ltd [1987]3 All ER 974 at 984, held; per Lord Bridge of Harwich:

“An employer having prima facie grounds to dismiss ……will in the great majority of cases not act reasonably in treating the reason as sufficient reason for dismissal unless and until he has taken the steps, conveniently classified in most of the authorities as ‘procedural’, which are necessary in the circumstances of the case to justify that course of action. Thus, in the case of ……..misconduct, the employer will normally not act reasonably unless he investigates the complaint of misconduct fully and fairly and hears whatever the employee wishes to say in his defence or in explanation or mitigation.”


It becomes the Court’s duty to determine whether both substantive and procedural justice were complied with before the dismissal was effected, see Beseni V Education Department of Nkhoma Synod [Matter No IRC 42 2001 (unreported)]. The Court of appeal in Polkey v A E Dayton Services Ltd at 989 (supra) provides the following guidelines for the Court to consider:


“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.”


Rules of natural justice demand that an employer should make relevant investigations and consultations prior to taking a decision affecting an employee’s employment. This is because:


“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.)”


Investigations

In all cases of misconduct, investigations form part and parcel of the disciplinary process. An action cannot be taken against an employee for allegations that he was insubordinate and rude without making enquiries from the employee and other concerned members. In the investigations, the employee must be given an opportunity to confront his accusers with a view to establish the truth or substance of the allegations. Aarons E. Ed. Termination of Employment; {Tolley’s Employment Service, Issue 5 (December 2000) page C2/29] suggests the following key points to be followed before dismissing for misconduct:


  1. “Acting reasonably when dismissing for misconduct involves investigation and giving the employee a chance to respond before dismissal;

  2. The employer should always avoid actual prejudgment and bias and should strive to ensure that there is no appearance of such problems either;

  3. This means that no decision to dismiss should be taken until the employer has carried out a full investigation and heard and considered the employee’s representations;

  4. Sufficient investigation must take place to enable the employer to form a genuine and reasonable belief of misconduct by the employee or group of employees.;

  5. The employee is entitled to be heard in his own defence and to argue against dismissal.



In this case a number of issues were raised that pointed at a sour working relationship between the applicant and his supervisor, the Postmaster. Some serious allegations were made against the Postmaster, for instance, that he was proposing to have an illicit affair with the applicant’s wife; that he was committing acts of fraud against the respondent; and further that he was suspected to have been involved in the death of the applicant’s child. Under normal circumstances, any reasonable person would expect that the Postmaster and the applicant would be called together to establish what was going on, because indeed it could be true that the Postmaster was doing all these things and he wanted the applicant dismissed. Yet, in the exercise of the respondent’s disciplinary hearing and eventual dismissal by management, the applicant was never given a chance to confront the Postmaster or his friend in the name of Mr. Kamchamcha who lodged the complaint against the applicant.


The investigations in this case were conducted after the applicant had been dismissed already. The investigations were therefore null and void as far as the determination of this case was involved. The respondent breached rules of natural justice incorporated in section 57(2) and section 61(2) of the Employment Act in not producing the complaints before the applicant so that they could be cross examined during the disciplinary hearing.


In Khoswe v National Bank of Malawi [Civil Cause No. 718/2002 (unreported)] in finding that the dismissal of the plaintiff was unfair, Chimasula J. held at page 16 of the transcript that:


“When evidence is given as to why dismissal occurred it is clearly better if everyone is in general agreement, and this is better sorted out before dismissal. The employer before dismissal is supposed to make sure that all the evidence is available and clear.”


In the same case the honourable judge concluding on the right to fair hearing held on page 18 of the transcript that:


‘[this] is also a fundamental principle of rules of natural justice that where the duty to act fairly demands an oral hearing, there is a right to cross examine witnesses. In R V Board of Visitors of Hull Prison, Ex Parte St Germain (no2) [1979] 1 WLR 1401, it was held that where witnesses were giving hearsay evidence, fairness may dictate allowing the person affected the opportunity to cross examine witnesses.”


Another notable breach of rules of natural justice in this case was that a higher body, that was not part of the disciplinary hearing made an adverse decision of dismissal contrary to the recommendation made by a panel of disciplinary committee members who were present at the hearing and in a better position to assess the evidence and deamenor of the applicant at the hearing.


Decision to be justified:

It might be correct that the disciplinary committee could only recommend while the higher body had the final decision. However in matters of affecting people’s rights, a higher body cannot just make a decision out of the blue without a basis. In this case, if the appointed member’s of the disciplinary committee thought that all the applicant needed from what they had heard was a warning and transfer, where then did management get the facts for which the applicant was dismissed?


Where there is a reason for which disciplinary action can be taken, the law states that even before that action is taken, the concerned employee must be given a right to be heard and defend himself. Management decided to dismiss the applicant without inviting him so that he could state his case before such an adverse action was taken. This kind of exercise of higher authority is not condoned in this era where employment rights are part of human rights. A contract of employment cannot be terminated at the whim of higher authority without a valid basis. There must be a justified reason for any adverse action taken. In this case the respondent did not provide any justification for the dismissal other than the fact that a higher authority had the prerogative to dismiss.


Previous warnings

As shown in this judgment an employer is entitled to consider previous acts of misconduct and warnings against an employee when deciding whether or not to dismiss him in subsequent cases of misconduct, see also Prindella V Limbe Leaf Tobacco Ltd [Matter No. IRC 49/2002 (unreported)]. Indeed the disciplinary committee in this case considered these factors in coming up with a final decision after hearing the applicant.


There were allegations that applicant had been cautioned before for his misconduct and that he had been transferred before from one station to another because of misconduct. The disciplinary committee took these factors into consideration. After the totality of all facts and circumstances of the case it was their decision that the applicant should be cautioned and transferred to a station where he could be closely monitored.


This was fair enough, because the applicant had been heard and had defended himself against the allegations. Management could not substitute its own decision which was more damaging to the applicant without giving the applicant an opportunity to be heard and defend himself. It was not shown that there were fresh allegations nor that the disciplinary committee had omitted some facts or indeed that they were not capable of making a reasonable recommendation.


Finding

The respondent failed to comply with rules of natural justice as provided in section 43 of the Constitution, section 57(2) and 61 (2) of the Employment Act, therefore the dismissal is unfair and the Court so finds.


Assessment of remedy

It follows that in all cases of dismissal where the employee is successful; he is entitled to a remedy provided under section 63 of the Employment Act. That section calls for fresh submissions from parties for a determination on the appropriate remedy to make in any particular case. The case shall therefore be set down to another date for an assessment of an appropriate remedy.


Pronounced in open Court this 4th day of October 2004 at LIMBE.



R Zibelu Banda (Ms.)

DEPUTY CHAIRPERSON.