Mendulo v Malawi Revenue Authority (IRC 161 of 2003 ) (161 of 2003) [2004] MWIRC 2 (11 February 2004);

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IN THE INDUSTRIAL RELATIONS COURT OF MALAWI


PRINCIPAL REGISTRY


MATTER NO. IRC 161 OF 2003


BETWEEN:


MENDULO………………………………………………….APPLICANT


AND


MALAWI REVENUE AUTHORITY………………….RESPONDENT



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

Applicant Present

Kaphale, Counsel for the respondent

Ngalauka – Court Clerk



JUDGMENT


Dismissal- Reason- Employer to provide reason- Burden of proof- Insubordination-Dishonesty-Procedure- Right to be heard and defend oneself.

FACTS

The applicant was employed on 14 February 2000. He was dismissed on 27 December 2001. The reason for dismissal was insubordination. The applicant challenged the dismissal alleging that the reason was not valid. The respondent asserted that insubordination was serious misconduct warranting dismissal.


The court was called upon to decide whether under the circumstances of the case as provided in evidence, the dismissal was fair or unfair. The court had the benefit of hearing both parties at length. What came out in evidence was the following:


The applicant was employed as Officer, Collectorate. The letter of offer of appointment advised the applicant that he would be required to undergo medical examination. The applicant accepted employment by signing this offer letter. It was heard that the medical examinations were conducted and the applicant was certified to be in good health condition.


Of much relevance to this case was Part III (1) of the Medical Report, where the examining medical specialist certified that the applicant was:


“in good health and fit for any type of employment anywhere in Malawi.”


This medical report confirmed the applicant’s own submissions in his Job Application Form of 4 November 1999 that he had no any permanent or persistent health problems.


It was on the basis that the applicant was in good health condition to work anywhere in Malawi that on 8 May 2001he was advised to go on transfer from Blantyre to Mangochi. He was given deadline to move but he refused to go on transfer. He refused to go on transfer claiming that the weather conditions in Mangochi would be detrimental to his health. He asked to be considered for transfer to some cool area, as he was allergic to heat.


The respondent considered his health concerns despite the previous medical certificates. They sent him for another medical examination. The medical specialist certified that the applicant had no health problems; he was fit to work anywhere. Basing on this information the applicant was advised again to go on transfer to Mangochi, but the applicant refused. A number of events happened after this including various inter-office memorandum on the subject.


In particular the applicant referred this court to a transfer proposal in a memo dated 12 September 2001, made by a Mr. H N H Banda to the Deputy Director Human Resources and Corporate Services. Mr. Banda was proposing that the applicant be transferred to Zomba. Evidence shows that the proposal was not approved because it had no basis. The status still remained that the applicant should go to Mangochi. The applicant maintained that he could not move and this prompted the dismissal.




THE LAW

Section 57 of the Employment Act provides that every employee must be informed the reason for his dismissal. It also provides that the employee must be given an opportunity to explain his case and defend himself.


Section 61 of the Employment Act places the burden of showing the reason for dismissal on the respondent. It was thus held in Earl v. Slater and Wheeler, [1973] 1 WLR 51:


“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 this case the respondent had a prima facie reason for which to take disciplinary action. The reason was insubordination. The applicant through all the communications and consultations with management regarding his transfer was aware or must have known that he was conducting himself in a manner that was inconsistent with the fulfillment of his express or implied conditions of employment.


In the instant case the court finds that there was valid reason for which the applicant could be dismissed. The applicant had displayed conduct that called for disciplinary action.


However before the disciplinary action could be taken the applicant was entitled to have his case heard and to defend himself. 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.”


In the instant case there were numerous correspondences and verbal discussions between management and the applicant on the transfer issue. The applicant explained his problem or fears and the respondent tried to assist him. It must be stated that the respondent went to great length to try and resolve the problem fairly. They sent him for medical examination to verify his fears. It was only after this was done that the respondent decided to dismiss the applicant for insubordination.


Procedure

As per Lord Bridge in Polkey,(supra) procedure means giving the applicant an opportunity to state his case and defend himself. There is evidence to show that the applicant had ample opportunity to state his case and he explained his fears. The applicant defended himself through his assertions that he was not fit to work in Mangochi. It was after verification that the applicant was not telling the truth, in other words he was dishonest, that the respondent dismissed him. It must be noted that the applicant tried to prove his case of ill health through some medical reports prepared by a District Health Officer in Chiradzulu. The respondent objected to use of this report because the author was not a medical specialist recognized by the respondent. Further, the author was not a medical doctor. The court agreed that the report was rather dubious.


The court finds that the applicant was afforded an opportunity to state his case before he was dismissed and he was given an opportunity to defend himself.


Summary dismissal

The court must assess whether the reason warranted summary dismissal. It is trite law that punishment must fit the crime. The reason for dismissal was insubordination. The court has also found that the applicant displayed dishonest conduct.


Insubordination

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 as per section 11 of the Employment Act, Cap 55:02(repealed). 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 and uttered some derogatory remarks to the effect that he did not care if he was dismissed.


Dishonesty

Dishonesty is another one of the serious employment offences under Employment Law. Dishonesty portrays a person who is unreliable and untrustworthy. The dishonesty has worked to the applicant’s disadvantage but his remedy is not in this court. If he had been honest in his job application that he had some persistent health problem, the respondent would have chosen whether to employ him on the position he was employed for or to give him another position requiring him to work only in Blantyre or some cool places, or not to employ him at all depending on the requirements of the respondent’s operations.


This court has found in previous cases that dishonesty goes contrary to the fulfillment of the express or implied terms and conditions of contract of employment. See Nhlane V Commercial Bank of Malawi (Matter No.36 of 2003 (unreported).


FINDING

The court finds that the respondent complied with fair labour practices as provided by law. The action is dismissed in its entirety.


Pronounced in Open Court this 11th day of February 2004 at LIMBE.




R. Zibelu Banda (Ms.)

DEPUTY CHAIRPRSON.