Mtonga v Malawi Savings Bank (IRC 126 of 2000) (126 of 2000) [2004] MWIRC 18 (05 November 2004);

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IN THE INDUSTRIAL RELATIONS COURT OF MALAWI


PRINCIPAL REGISTRY


MATTER NO. IRC 126 OF 2000


BETWEEN:

MTONGA…...………………………………………………. APPLICANT


-and-


MALAWI SAVINGS BANK………….………………… RESPONDENT



CORAM: R. Zibelu Banda (Ms.), Deputy Chairperson
Applicant; present
Njobvu; of Counsel for the respondent
Lora/ Ngalauka/ Mbewe – Court Clerks

JUDGMENT

Dismissal-Justification for dismissal-Reasons for dismissal-Misconduct-Lack of commitment to duties-Rules of natural justice-Right to be heard-Probationary period-Rights and duties under probationary period-Compensation-Factors to consider-Loss.


Facts

The applicant Godfrey Mtonga was employed as Product Development and Marketing Officer on 7 February 2000. He was put on a six- months probation to expire in August. Before the probationary period was over, the applicant was dismissed from employment. The reason for dismissal was misconduct. The applicant challenged the dismissal alleging that he was not given a valid reason and that he was not given an opportunity to be heard and defend himself. The respondent on the other hand contended that the dismissal was fair. They stated that the applicant displayed an attitude that lacked seriousness in his new job. He was given an opportunity to be heard and that it was after the hearing that a decision to dismiss was made.


Issues

The Court was called upon to determine from the available facts whether the dismissal was fair. In order to consider the issue whether dismissal was fair in this case the Court must have recourse to the law as it applied to the facts at the time the cause of action arose in July 2000. The applicant also asked the Court to determine that he was entitled to be repatriated.


The Law

The Constitution prevailed at the time that the applicant was dismissed. The relevant provisions in the Constitution are section 31 that provides for fair labour practices and section 43 generally.


In employment cases before an employer can dismiss or take any adverse action against its employee, it must first have a valid reason for that adverse action. The reason must be communicated to the employee with enough particulars so that the employee can answer to the allegations leveled against him. The employee can explain his side, defend himself and offer evidence in mitigation. The employer is then obliged to take the employees explanation, defence and mitigation if any into consideration before making any decision that will adversely affect the employee. This process is what constitutes fair labour practices, see for instance, Chawani V Attorney General [MASC Civil Appeal No. 18/2000 (unreported.


Where an employer adduces evidence as to the reason for dismissal, the Court must decide whether the reason was valid enough to warrant the action taken by the employer. In the instant case the respondent informed Court that the applicant displayed characteristics of someone who was not serious in establishing a career with the respondent bank. The respondent arrived at this conclusion when before the probationary period, the applicant asked for a salary raise; within the same period the applicant on two occasions asked to go on compassionate leave to attend to his private matters; it also transpired that at one occasion the applicant had gone to attend interviews at another institution without the respondent’s knowledge; and it was further the respondent’s evidence that the applicant had refused to be permanently relocated with his family from his base before employment to a different location where his position was available. He decided to lodge with a friend in Blantyre while his family remained in Lilongwe.



The applicant on the other hand asserted that he was entitled to ask for salary raise regardless of whether or not he was on probationary period; he further contended that he was entitled under the terms and conditions of his employment to compassionate leave and that he had complied with the required procedures before embarking on leave; he also told Court that there was nothing wrong in seeking greener pastures elsewhere and in conclusion he stated that the respondent violated his right to fair labour practices because the reason for dismissal was invalid and the procedure was flawed. The Court agrees with the applicant that the respondent did not have a single valid reason for which they could have terminated the services of the applicant.


The applicant was entitled to ask for better conditions of employment and he was under the terms and conditions of employment entitled to go on compassionate leave. Further any person is entitled to seek greener pastures. It is not prohibited for an employee to chose where to have his family, what is important is that the employee makes himself available for the work that he is given to perform at all time when he is required to so work.


Having found that there was no single or main reason for dismissal, the question is whether under the circumstances of this case, the respondent had any remedy? After listening to the testimony tendered in court, it was the Court’s view that on aggregate the respondent had cause to press the alarm button. The applicant certainly conducted himself in a manner that was inconsistent with any assertions that he was settled in his employment and that he was ready and prepared to develop a career with the respondent bank.


The applicant’s attitude in his employment could have raised suspicions in any employer as to whether he was seriously considering working for the respondent. The applicant was on probation, one would expect that the applicant would take his time to study the situation on the ground, and even contribute something to the respondent before making salary increment demands. Further, one would have expected that the applicant would work through his probationary period and decide whether the conditions were adequate compared to the nature of the job. However, the applicant attended interviews with another organisation before his probationary period. Coupled with his refusal to transfer his family from Lilongwe to Blantyre, the respondent concluded on the aggregate and rightly so in the Court’s view that the applicant was not stable.


The respondent could not depend on the applicant and they had to protect their interests just as the applicant sought to protect his interests by attending interviews with a third party. However, it was the procedure that the respondent took to protect its operational requirements that left a lot to be desired.


Procedure

The respondent averred that they had invited the applicant to a meeting to discuss his leave, especially the second leave. The respondent was concerned that the applicant had gone on leave the second time during probationary period and at the same time the respondent got a message that the applicant had attended interviews with a third party. The respondent asked the applicant to explain the leave issue, which the applicant did. The respondent was not convinced with the explanation and they decided to terminate the services of the applicant.


This Court has stated in some of its decisions that the procedure that is required in employment cases is not necessarily the judicial type of hearing. In Khoswe V National Bank of Malawi [Civil Cause No 718/ 2002, it was held that it is a hearing if the employer tells the employee the nature of the allegations and the employee is asked to answer to those allegations. It must be noted that the employer need not institute what is commonly termed a disciplinary hearing in order for the right to be heard to be upheld.


In the instant case, the allegations against the applicant was that he had gone on leave. The applicant responded to this allegation. It has been noted above that this alone did not constitute a valid reason for dismissal. It was the aggregate as narrated in court. It was therefore imperative for the respondent to outline before the applicant all the factors of concern so that he could respond to all of them and defend himself. Only after the applicant was told of these reasons and answered to them that the right to be heard could have been complied with. Therefore the Court finds that the respondent did not afford the applicant an opportunity to be heard on the allegations that he was not serious with his career with the respondent.


Remedy

The next step that a court determines when a finding has been made in favour of the dismissed employee is to assess an appropriate remedy. In this case the remedies are provided for in the Constitution under section 46. The material part in that section is that the remedy must be necessary and appropriate in the circumstances of a particular case.


The circumstances of this case have been outlined. The dismissal was unfair on technicality and for purposes of this case, had the respondent complied with the procedure, the applicant would have been dismissed anyway. Therefore using the provisions of the Constitution as stated in section 46 and applying the interpretation of what is necessary and appropriate in a particular case, the Court finds that the applicant is not entitled to any remedy, see, Katawa V Warpack supra where this Court referred to Earl V Slater & Wheeler (Airlyne) [1973] 1 WLR 51, which held that:


“We do not think there is any room in this field for the award of nominal compensation and in the light of the tribunal’s finding that the employee suffered “no conceivable injustice” they must, even if they had found unfair dismissal, have assessed the compensation at nil. …we consider that the employee’s claim for compensation was rightly dismissed.”


A similar decision was arrived at in this Court in, Chigwenembe V. Tafika Civil Engineering and Building Contractors Limited (Matter number IRC 124 OF 2001) (unreported).


Repatriation

In Import and Export (Mw) Ltd (In liquidation) V Kankhwangwa and others [Civil Cause No. 52/2003 (unreported)], Kapanda J. held that repatriation constitutes fair labour practices under section 31 of the Constitution. In the instant case the applicant asked for a sum of money to repatriate himself from Blantyre to Lilongwe. The respondent alleged that the applicant did not deserve to be repatriated as he had not moved permanently to Blantyre. The Court finds that since the respondent knew that the applicant had been employed from Lilongwe, they are obliged to repatriate the applicant to the point of recruitment. The mode of repatriation will be whichever is cheaper between paying a lump sum or to provide a vehicle hired or secured by the respondent within seven days of this order.


Pronounced in Open Court this 5th day of November 2004 at LIMBE.



R. Zibelu Banda (Ms.)

DEPUTY CHAIRPERSON