Ulaya v SDV (IRC133 of 20011 ) (133 of 20011) [2004] MWIRC 15 (19 October 2004);

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IN THE INDUSTRIAL RELATIONS COURT OF MALAWI


PRINCIPAL REGISTRY


MATTERS NO. IRC 133 OF 2001


BETWEEN:


ULAYA...………………...……...…………………………... APPLICANT


-and-


SDV (AMI) MW LTD……………………...……………...RESPONDENT



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

Applicant; present.

Njobvu; of Counsel for the respondent

Mbewe; Court Clerk



JUDGMENT

Dismissal--Reason for dismissal- Misconduct- Negligence-Leading to loss of company property-Shortage-Value-Irrelevant-Procedure- Opportunity to be heard- and defend oneself-Interference with employer’s decision.


Facts

The applicant was employed as Assistant Warehouse Supervisor in 1999. He was dismissed on 30 May 2001 on allegations that the applicant had incurred sugar shortages in wagons he had loaded for Nacala. The respondent inquired from the applicant on the cause of the shortages.


The applicant explained his side and defended himself at a meeting constituted to establish the cause of the sugar shortages. It was after the applicant had explained his side that the respondent, not being convinced with the explanation, decided to dismiss the applicant with notice.


The applicant challenged the dismissal alleging that the reason was not valid and that he was not given ample opportunity to be heard. The respondent on the hand contended that the applicant was fairly dismissed as he was informed of the reason for dismissal and he was afforded an opportunity to explain his case and defend himself.


The Law

Reason

In all unilateral terminations of employment by the employer he must give reasons for the termination. This is a requirement under section 57(1) of the Employment Act. If an employer fails to comply with this requirement the termination becomes unfair.


The burden of proving that there was a reason for dismissal is placed on the employer. The Court must then determine whether the reason was valid. This requirement is fundamental in fair labour practices. It was held in Earl v. Slater & Wheeler (Airlyne) Ltd. [1973]1 WLR 51 at 55 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.”


In our own legislation governing employment the law in section 61(1) of the Employment Act provides that:


“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 the instant case the applicant was responsible for loading bags of sugar for export through Nacala. He would load the sugar into wagons, which were then sealed and welded and sent to Nacala. The sealing and welding was done to ensure that no person tampered with the sugar while in transit. It was discovered after some time that the wagons loaded by the applicant had some sugar shortages. The respondent inquired from the applicant who was solely responsible for loading sugar about the shortages. The applicant admitted to incurring some shortage but not all the shortages that had been uncovered. The respondent in a bid to protect its interests terminated the services of the applicant.




Procedure

The Court finds that the fact that the applicant admitted to incurring some shortages and failed to explain how the shortage was incurred was enough ground to institute disciplinary measures. An employer having a valid reason for which they could dismiss an employee would not act fairly by dismissing without conducting an inquiry aimed at giving the employee an opportunity to explain his case and defend himself, see Polkey A E Dayton Services Ltd [1987] 3 All ER 974.


In this case the applicant was invited to explain what had happened. He asserted that he was not responsible for all shortages that were uncovered in Nacala. However he could not explain how the shortages that he incurred came about. The respondent found from the explanation of the applicant that he was not capable of handling the work for which he was employed. The applicant was either dishonest or was grossly negligent. The respondent had lost confidence in the applicant such that they could not retain him in employment.


It was the Court’s view that the respondent had established that the reason for dismissal was valid and that they had afforded the applicant the opportunity to be heard when the applicant was invited into the company’s boardroom for questioning on the sugar. It has been heard that as long as the employee knows the allegations against him and is asked to explain his side, the right to be heard is complied with, see Khoswe V National Bank of Malawi [civil Cause No. 718/ 2002 (unreported)]


Dishonesty is one of the serious 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)].


Gross negligence of duties is serious industrial misconduct especially where it leads to loss of company resources or brings the company’s reputation into disrepute among its valuable clients, see generally, Bandawe V ADMARC [Matter No. 100/2000 (unreported)] and Kambewa V Malawi Distilleries Ltd [Matter No. 81/2003 (unreported)].

Interference with employer’s decision.

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.”


In the instant case, the Court has no reason to interfere with the sanction imposed by the respondent.


Shortages- Value of loss

The applicant conceded incurring shortage of 20 bags of sugar. It must be noted that value of property or resources lost through employees misconduct or incapacity is not an issue when dealing with whether a dismissal was fair or unfair. What matters is whether the respondent in its operational requirements regards the unexplained loss serious enough to warrant dismissal; 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.”


In the instant case the respondent stated that they deal in handling clients goods. In the instant case they were transmitting client’s sugar from Malawi via Nacala. It was crucial in the operational requirements of the respondent that every sugar exported by them was properly accounted for. In the instant case the respondent explained that the owner of the lost sugar was a big client and the shortage had the capability of adversely affecting the respondent’s business, hence shortage of any amount was serious enough to warrant the dismissal of whosoever was responsible for the unexplained loss.


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 19th day of October 2004 at LIMBE.




R. Zibelu Banda (Ms.)

DEPUTY CHAIRPERSON.