Nzangaya v Unitrans (MW) Ltd (IRC 32 of 2003) (32 of 2003) [2004] MWIRC 4 (25 February 2004);

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IN THE INDUSTRIAL RELATIONS COURT OF MALAWI


PRINCIPAL REGISTRY


MATTER NO. IRC 32 OF 2003


BETWEEN


NZANGAYA………………...……………………………….APPLICANT


  • and –


UNITRANS (MW) LTD…………………………………..RESPONDENT




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

Applicant: Present

Ndau: Counsel for the Respondent

Ngalauka: Court Clerk



JUDGMENT

Dismissal-Reason-Misconduct-Carrying unauthorized passenger-Procedure- Disciplinary hearing-Union Representatives – Terminal Benefits- Employees entitlement to terminal benefits.

FACTS

The applicant was employed on 1 July 1998 as Class E Driver/ Operator. On 10 August 2001 he was dismissed for carrying unauthorized passengers on company tractor and being found in possession of three empty diesel plastic containers. The applicant challenged the dismissal.


The applicant as driver was prohibited from carrying any unauthorized passengers. On 9 August 2001 the applicant was caught red handed by the respondent’s Depot Manager (DM) carrying unauthorized passenger. He was also found in possession of three empty diesel containers. These containers are used for carrying fuel. The applicant was confronted on the spot. He explained that he had stopped to look into a tractor problem and that he had not given any person a lift. He said the three empty containers belonged to an unknown person who had run away upon seeing the DM. This was the principal reason for dismissal.


THE LAW

Reason

Section 57(1) of the Employment Act provides that before dismissal an employee must be given the reason for the dismissal. The burden is on the employer to prove the reason for dismissal, see Mendulo V Malawi Revenue Authority (Matter No. IRC 161 of 2003 (unreported)).


The applicant was accused of carrying unauthorized passengers. This was serious misconduct according to the terms and conditions of employment of the respondent company. The applicant was informed about this allegation. Therefore the respondent complied with the first part of section 57.


The second limb of section 57 provides that where the reason for dismissal is misconduct, the applicant must be given an opportunity to state his case and defend himself. See Mendulo case above.


Procedure

The requirement under section 57(2) is what is normally referred to as procedure in industrial relations. The respondent is required to inform the applicant the particulars of the allegation so that the applicant can properly prepare his case and state his side, see Prindella V Limbe Leaf Tobacco Ltd (Matter No. 49 OF 2002 (unreported)).


The respondent constituted a disciplinary hearing where a member of Trade Union represented the applicant. The applicant admitted at the hearing that he committed an act of misconduct by carrying unauthorized passengers. He asked for lenience. The committee recommended that the applicant be discharged immediately.


The letter of termination stated that the applicant had been discharged with immediate effect. The applicant alleged that he was entitled to terminal benefits like pay in lieu of notice and severance allowance. The respondent testified in court and stated that the misconduct was serious enough to warrant summary dismissal but they decided to discharge the applicant with full terminal benefits.


The court found that the terms and conditions of employment for the applicant, especially Clause 8 on that document provides that carrying unauthorized passengers is serious misconduct that carries the punishment of instant dismissal. Therefore upon a finding that the applicant had committed that misconduct, the respondent was entitled to dismiss summarily.


The respondent did not dismiss summarily, because of some mitigating factors like the fact that the applicant was hard working. The court cannot interfere with such finding.


FINDING

The court finds that the applicant was given reason for dismissal. He was also afforded an opportunity to explain his side and defend himself. The hearing was fair. The respondent complied with fair labour practices. The court finds that the applicant was fairly dismissed.


TERMINAL BENEFITS

The applicant was not dismissed summarily therefore he was entitled to one -month salary in lieu of notice. The respondent is therefore ordered to pay terminal benefits as follows:


  1. Notice Pay

The applicant must receive one-month salary. His last salary was K5254 and K1052 house allowance. The total award on this head is:

K6306.00.

  1. Severance Pay

The applicant is not entitled to severance pay because he was dismissed fairly for misconduct. Section 35 of the Employment Act precludes him from receiving severance allowance.

  1. The total award is: K6306.00.

This money must be paid to the applicant within 14 days of this order.


Pronounced in Open Court this 25th day of February 2004 at LIMBE.



R. Zibelu-Banda(Ms.)

DEPUTY CHAIRPERSON.