Mkanda and Another Mc Connel and Company (IRC 6667 of 20003 ) (6667 of 20003) [2004] MWIRC 14 (14 October 2004);

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IN THE INDUSTRIAL RELATIONS COURT OF MALAWI


PRINCIPAL REGISTRY


MATTERS NO. IRC 66 & 67 OF 2003


BETWEEN:


MISOYA & ANOTHER……...…………………………... APPLICANTS


-and-


MC CONNEL & COMPANY (MW) LTD……………...RESPONDENT



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

Applicants; present.

Mbendera; for the respondent

Ngalauka / Mbewe; Court Clerks



JUDGMENT

Dismissal-Summary dismissal-Reason for dismissal- Misconduct- Dishonesty-Willful disobedience of company regulations and procedures-Procedure- Opportunity to be heard- and defend oneself-Interference with employer’s decision-Loss to company-Value-Irrelevant.

Introduction

The two applicants sued individually under Matters No IRC 67 and 66 respectively. It was after the first applicant had been heard that the Court realized that the causes of action in the two cases were similar, arising from the same transaction. The Court therefore ordered that the two matters be consolidated and one judgment apply to both. The second applicant however stated that his case was different in that while the first applicant was given a right to be heard, the second applicant was not. He therefore asked that his case be determined separately. The second applicant was therefore given his day in court and the matter was concluded on 23 September 2004.


Judgment in the first case was reserved awaiting the outcome of the second case so that the judgment could deal with both issues in as far as the facts in these cases were similar and the cause of action arose from similar events and transactions.


Facts

The two applicants were employed on various dates. They were dismissed on 9 September 1999 for flouting established company rules and regulations and dishonesty. It was alleged that the two applicants were working as Branch Manager and Supervisor respectively at one of the respondent’s shops. In the course of their normal work the two applicants were required to travel by public transport to another area to access banking services for the shop’s proceeds. In order to travel the applicants had to draw transport allowances. In certain occasions the two applicants were also entitled to draw lunch allowances in the normal course of duty. The two applicants being senior officers in this shop had the power to authorize and draw these allowances.


It transpired some time that the two applicants were drawing more transport and lunch allowances than what was recommended by the respondent through several chain circulars. The respondent believed that the two applicants had disobeyed company regulations as advised from time to time and that they were dishonest because they drew more money than was necessary in order to enrich themselves. The respondent assessed the loss at K2000-00 through the theft of the two applicants. The respondent dismissed the two applicants after an inquiry into the allegations. The applicants challenged the dismissal alleging that the reason was not valid and that in the case of second applicant; he alleged that he had not been given an opportunity to be heard before dismissal.


The respondent on the other hand maintained that the reasons for dismissal were valid and that the two applicants had been afforded the opportunity to be heard at an inquiry held on 21 July 1999, where the two applicants admitted committing the offences for which they were dismissed. The Court was called upon to determine whether the respondent complied with the law.


The Law

Reason

The cause of action arose in 1999, before the Employment Act came into force, therefore the Constitution is the applicable law in this case. Section 31 of the Constitution provides that every person has the right to fair labour practices. Fair labour practices entail that a person shall not be dismissed without being given a reason, section 43 of the Constitution.


The burden of proving reason for dismissal is on the employer, see Earl V Slater & Wheeler [1973]1WLR 51. In this case the respondent informed Court that the applicants were abusing company finances by drawing money from petty cash for their personal gains in contravention of company regulations. This was dishonest conduct but also willful disobedience of company regulations.


Dishonesty is one of the gross cases of misconduct warranting summary dismissal; see Kachingwe V Shire Bus Lines [Matter No. IRC18/2000 (unreported)]; Kachingwe & others V Southern Bottlers Ltd [Matter No. IRC 162/2003 (unreported)] Chitenje V PEW Limited [Matter No. IRC 36/2000 (unreported)]; Ndawala V Malawi Distilliries Ltd [Matter IRC No. 305/2001 (unreported)]; Nazombe & others V Southern Bottlers Ltd [Matter No. IRC 56/2000 (unreported)]; and Zolowere V Total (Mw) Ltd [Matter No. IRC 193/ 2002 (unreported)].


Willful disobedience of company rules and regulations is serious misconduct warranting summary dismissal; see Mussa V Securicor (Mw) Ltd [Matter No. IRC 2/2000 (unreported)] and Mendulo V Malawi Revenue Authority [Matter No. IRC 161/ 2003 (unreported)].


The Court finds that the respondent had valid reason for which they could institute disciplinary proceedings against the two applicants. However before any adverse action against an employee is taken, that employee must first be afforded an opportunity to explain his side and defend himself; see Chawani V Attorney General [MSCA Civil Appeal No.18 of 2000(unreported)].


In the instant case Court heard that the applicants were drawing some lunch and transport allowances for themselves without following company regulations. The anomalies were discovered through a spot check conducted by the respondent’s Regional Manager for the South. The applicants were asked to explain the anomalies at an inquiry held on 21 July 1999. The applicants explained and admitted that they had contravened company regulations that set down rates for lunch and transport allowances; see exhibit “RP12” being minutes of the inquiry. The respondent found the applicants guilty of misconduct and decided to summarily dismiss them.

It has been held in this Court that decisions of employers should not be tampered with if there is no allegation that the process to arrive at the decision was not fair. See the case of Kachingwe &others V Southern Bottlers Mw Ltd [Matter No.162 of 2003(unreported)]. In that case the Court quoted with approval a holding of the Labour Appeal Court of South Africa in the case of County Fair Foods (Pty) Ltd V CCMA & others [1999]11BLLR 1117 (LAC), per Kroon JA:


“[interference] with the employer’s sanction “ is only justified in the case of ……..unfairness.” However, the decision of the arbitrator as to the fairness or unfairness of the employer’s decision is not reached with reference to the evidential material that was before the employer at the time of its decision but on the basis of all evidential material before the arbitrator. To that extent the proceedings are a hearing de novo.”


It was heard in the instant case that both applicants were invited to appear before an inquiry where the allegations were put to them and they were asked to answer to them. The second applicant did not convince Court on a balance of probabilities that he was never invited for an inquiry. In fact the Court found as a fact that both applicants were untruthful witnesses. An inquiry was instituted where the applicants were given the opportunity to explain their side. The inquiry proceedings were recorded and two members who sat at the inquiry gave evidence to confirm that indeed an inquiry into the allegations against the two was conducted. It was only after the inquiry that a decision to dismiss was made. The Court has no reason to interfere with the sanction imposed by the respondent.


Loss to company

The Court was informed that the loss to the company was K2000-00. It must be noted that where operational requirements of a company demands an account of very penny and that loss of resources would adversely affect its operations, the company is entitled to summarily dismiss any of its employees found misappropriating or stealing company funds. The value of the loss is irrelevant; see Ibrahim V Suncrest Creameries Ltd [Matter No. IRC 73/2003 (unreported)] and Phiri V Shoprite Checkers Ltd [Matter No. IRC 74/2003 (unreported)] where this Court quoted with approval the following passage from De Beers Consolidated Mines Ltd V CCMA &others [2000] 9 BLLR 995 (LAC):


“Dismissal is not an expression of moral outrage; much less is it an act of vengeance. It is, or should be, a sensible operational response to risk management in the enterprise. That is why supermarket shelf packers who steal small items are routinely dismissed. Their dismissal has little to do with society’s moral opprobrium of a minor theft; it has everything to do with the operational requirements of the employer’s enterprise.”


Finding

The Court finds that the respondent complied with the law. The dismissal was fair. Action is dismissed in its entirety.



Pronounced in Open Court this 14th day of October 2004 at LIMBE.




R. Zibelu Banda (Ms.)

DEPUTY CHAIRPERSON.