Nazombe and Others v Southern Bottlers Ltd (IRC 56 of 2006 ) (56 of 2006) [2004] MWIRC 3 (19 February 2004);

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IN THE INDUSTRIAL RELATIONS COURT OF MALAWI


PRINCIPAL REGISTRY


MATTER NO. IRC 56 OF 2000


BETWEEN


NAZOMBE AND OTHERS..……………………………….APPLICANT


  • and –


SOUTHERN BOTTLERS LTD………………………….RESPONDENT




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

Nazombe Applicant: Present

Respondent: Absent

Ngalauka: Court Clerk



JUDGMENT

Dismissal-Reason-Misconduct-Dishonesty-Theft-Attempted theft-Procedure- Disciplinary hearing-Union Representatives - Employee to know his pension contribution.

FACTS

The three applicants were employed on various dates as Head Driver, Driver and Assistant to the Driver. They were dismissed on 2 February 2000 for misconduct. They challenged the dismissal asserting that they did not commit any offence.


The court heard that on 10 February 2000 the applicants were traveling to Mzuzu in a company truck on duty. Along the way one of them wanted to visit the bush to use the toilet. As they stopped a group of unknown persons approached their truck with gallons, notoriously known for siphoning fuel from trucks plying the Blantyre – Mzuzu road. A few minutes later the Chief Executive Officer (CEO) for the respondent company, who was traveling on the same road, saw the applicants and stopped. He inquired from the applicants what was happening. The applicants told him that one of them was using the toilet. The CEO did not believe the applicants’ story.


The applicants were invited by the Transport Coordinator to explain what had happened on 10 February 2000. They repeated the story that they had told the CEO. The Coordinator was not convinced. The applicants were advised to submit written reports of what had happened. They complied.


The applicants’ explanations were not convincing and so they were invited to appear before a disciplinary hearing on 2 March 2000. Three union members for the respondent Trade Union represented the applicants. The disciplinary committee made recommendations. The applicants were summarily dismissed on 2 March 2000. They did not receive terminal benefits other than salary for days worked in that month, accrued leave days and overtime pay if any. Mr. Nazombe was on a contributory pension scheme, he did not get his contributions because he owed the respondent some money, according to him around K38000.00.


THE LAW

Reason

Section 31 of the Malawi Constitution provides that every person has the right to fair labor practices. This entails that before an employee can be dismissed he must be given reasons for the dismissal so that he can explain his side and defend himself. See Dr Chawani V. The Attorney General (MSCA Civil Appeal No. 18 of 2000 (unreported)).


In the instant case the applicants were accused of misconduct by siphoning fuel from company truck in order to sell without authority. This was serious misconduct that called for disciplinary action.


Procedure

Before any action could be taken, the respondent gave the applicants opportunity to state their case and defend themselves. Disciplinary hearing is a necessary legal requirement in dismissal cases, see, the considered dictum of Lord Bridge in Polkey V A E Dayton Services Ltd [1987] 3 All ER 974, cited in Mendulo V Malawi Revenue Authority (Matter No IRC 161 of 2003 (unreported)).


The applicants in the instant case explained their side of the story before a disciplinary committee that comprised union representatives. The applicants alleged that members of the union present at the hearing did not say anything. The court believes that if the union members had anything to say, they would have said it without being prevented. The court believes that the disciplinary committee was properly constituted. The court cannot interfere with the decision of the respondent.


Summary Dismissal

Summary dismissal is appropriate in misconduct cases that are inconsistent with the fulfillment of express and implied terms and conditions of contract see section 11 Employment Act (Cap 55.02 (repealed). Theft or attempted theft is one such misconduct.


FINDING

The court finds that dismissal of the three applicants was done in accordance with the law and complied with modern good industrial practice. The applicants were informed of the reason for dismissal and were given opportunity to state their case and defend themselves. The action for unfair dismissal is dismissed in its entirety.


PENSION

It is alleged that the respondent forfeited pension contributions for Mr. Nazombe. Although the applicant owed the respondent some money, he should still have received notice of how much his pension amounted to.


ORDER

The court orders that the respondent should make available the break down of Nazombe’s pension withdrawals and serve them on the said Nazombe and file a copy with the court within seven days of this order. The order equally applies in respect of the other two applicants if they were on contributory pension scheme.



Pronounced in open court this 19th day of February 2004 at LIMBE.



R. Zibelu Banda (Ms)

DEPUTY CHAIRPERSON