IN THE INDUSTRIAL RELATIONS COURT OF MALAWI
MATTER NO. IRC 67 OF 2000
MISSIH .. . ... . .APPLICANT
GDC HAULAGE LTD ..................... ...RESPONDENT
CORAM: R. Zibelu Banda (Ms); Deputy Chairperson
Mphenzi (Ms.); of Counsel for respondent
Ngalauka (Ms.); Court Clerk
Dismissal-Justification-Reason-Negligence-Divulging information without permission-Procedure-Suspension pending explanation-Failure to provide satisfactory explanation-Opportunity to be heard and defend oneself-Court interference with employers decision.
The applicant was employed on 22 February 1992. He was dismissed on 31 August 1996. The main reason for dismissal was that he had divulged classified information relating to death of employee to an outsider without permission. The applicant challenged the dismissal alleging that the reason was not valid. The respondent on the other hand contended that the reason was valid according the companys rules and regulations.
The Court was called upon to determine whether the dismissal was fair. The main issue was whether under the circumstances of this case the reason for the dismissal was valid.
The cause of action in this matter arose in 1996 therefore the applicable law in this case is the Constitution. Section 31 of the Constitution provides for fair labour practices. This entails that every employee must be treated with fairness during employment including where there is a disciplinary action to be taken against any employee. Fairness entails that the employee will not be dismissed without a valid reason and that he will not be dismissed without being given an opportunity to be heard.
An employer is under legal obligation to give an employee a valid reason before any adverse action can be taken against that employee, see section 43 of the Constitution. In Earl V Slater and Wheeler (Airlyne) Ltd  1 WLR 51, it was held that it is the duty of the employer to show the reason for dismissal.
In this case the respondent informed court that the applicant divulged information to external persons relating to matters involving the death of an employee outside the country. The respondent showed court that it was not the duty of the applicant to divulge such information. It at all the applicant had to provide the information, he could only do so with prior permission from his superiors. The applicant did not get the permission to provide the information. This was gross negligence according to the respondent entitling them to terminate the contract of the applicant. The Court finds that the respondent had valid reason for taking disciplinary action against the applicant. However before any action could be taken the respondent was under legal obligation to afford the applicant an opportunity to be heard and defend himself.
It is a cardinal principle of natural justice that a person shall not be condemned before he is heard and defends himself. The Malawi Supreme Court of Appeal held in Chawani V Atorney General [ MSCA Civil Appeal No 18/2000] 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.
Regarding what constitutes adequate and effective hearing, Chimasula Phiri J. in Khoswe V National Bank of Malawi [Civil Cause No. 718/2000 (unreported)] quoting from Fairmount Investments Limited V Secretary of State  2 All ER 865 held that:
If a party is adversely affected by any evidence and is given the right to comment on that evidence, the principle of right to be heard is complied with.
The South African Labour Court has decided on a similar question. In Cornelious & Others V Howden Africa Ltd t/a M& B Pumps  19 ILJ 921 the Court held that:
It does not matter whether each of the procedural requirements [has] been meticulously observed. What is required is for all relevant facts to be looked at in the aggregate to determine whether the procedure adopted was fair. One must guard against the rigid imposition of judicial style proceedings in inappropriate situations.
In the instant case the applicant was called for a meeting to explain why he had divulged the information to an outsider. The applicant made his explanation. The respondent was not convinced with the explanation as a result they put the applicant on suspension pending a satisfactory explanation. For nine days the applicant failed to provide the explanation. The respondent then terminated the applicants contract of employment. The applicant was paid wages for days worked in August, one month notice pay, accrued leave pay and house allowance.
In court the applicant explained that he was entitled to speak with outsiders and divulge information to those who demanded it. He said divulging information was part of his duties. He also said that his contract of employment did not specify that he could not divulge information. In cross-examination the applicant conceded that he did not know the procedure for giving out information on the telephone to outsiders.
The respondents explanation in court was that the applicant was working as Trucker. He was responsible for monitoring the movement and smooth running of trucks in and outside Malawi. The kind of information that the applicant divulged was the duty of the General Manager or in his absence the Personnel Department. They contended that after the applicant was aware that the information demanded was regarding funeral, he should have referred the caller to the General Manager of in his absence to the Personnel Department for appropriate response. The respondent maintained that the applicant had breached company procedure by divulging the information in question without authority. The applicant was asked to explain this allegation.
The Court finds that the applicant was given an opportunity to explain his side and defend himself, but the applicant left employment and never came back with an explanation until he was dismissed.
In assessing the fairness of a dismissal the question arises as to what extent a Court should be permitted to interfere with the employers bona fide decision to dismiss. The issue was deal with in the Labour Appeal Court of South Africa, in County Fair Foods (Pty) Ltd V CCMA & others 11BLLR 1117 (LAC), where, Kroon JA held that:
[interference] with the employers sanction is only justified in the case of ..unfairness. However, the decision of the arbitrator as to the fairness or unfairness of the employers 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.
There are a number of reasons for holding that a Court should not lightly interfere with decision of the employer. For instance, the employer had the advantage of hearing witnesses into the alleged misconduct at the time that it happened and the employer is better placed to know the rules and procedures and more especially its operations than a Court.
The Court finds that the respondent complied with fair labour practices enshrined in the Constitution. The applicants action is therefore dismissed in its entirety.
The applicant submitted that he had incurred some expenses for attending court. He averred that there were several adjournments at the instance of the respondent. The court notes that the adjournments were necessary as the respondent was trying to locate and summon their crucial witness to this case. The cause of action arose in 1996. The matter was filed with the court in 2000. The hearing took place in January 2004. It was inevitable that some witnesses would have moved elsewhere therefore demanding more time to locate them and get their attendance. The Court therefore finds that the adjournments on the part of the respondent were not without valid excuse. In any case the Industrial Relations Court has no jurisdiction to award costs. It is only in exceptional cases that costs are awarded. Those exceptions have not been shown in this case, see section 72 of the Labour Relations Act. The claim is therefore dismissed.
Pronounced in open Court this 15th day of November 2004 at LIMBE.
R. Zibelu Banda (Ms.)