Court name
Industrial Relations Court
Case number
IRC Matter 82 of 2003

Pelani v Illovo Sugar Corp (IRC Matter 82 of 2003) [2004] MWIRC 5 (11 March 2004);

Law report citations
Media neutral citation
[2004] MWIRC 5

IN THE
INDUSTRIAL RELATIONS COURT OF MALAWI




PRINCIPAL
REGISTRY




MATTER
NO. IRC 82 OF 2003




BETWEEN




PELANI
………………………………………………..APPLICANT





  • and
    –




ILLOVO
SUGAR LIMITED ………………………….RESPONDENT






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


Nkuna:
Of Counsel for the Respondent


Applicant: Present


Ngalauka: Court Clerk








JUDGMENT


Dismissal-Summary-Justification-Reason-Misconduct-Theft-Due
Process-Right to be heard-Disciplinary hearing-Union Representation.




FACTS


The
applicant was employed in 1975. He was dismissed in 1999. The
reason for dismissal was theft. The applicant challenged the

dismissal and demanded his long service (severance) pay, notice pay
and repatriation costs.




The
applicant stated that he was working as tyre man and his duties
involved mending tyres. On the material date he was given the
task
of mending some tyre on a vehicle, which had broken down out side the
company premises. He stated that he carried two tyres
on a trailer
of the vehicle he was driving. On his way to the breakdown spot he
lost one tyre. He reported the loss to management.
However,
management accused him of stealing the tyre.




The
respondent believed that the applicant had stolen the tyre because
earlier on the applicant had been seen taking out a tyre
from a
packed trailer. Securicor Personel asked the applicant about the
tyre he was seen taking out from a trailer. The applicant
stated
that he had left it at some place called Area 4. When asked to
collect the tyre from Area 4 the applicant failed to produce
it.




The
respondent felt that there was a prima facie case for the applicant
to answer charges of theft of tyre belonging to the company.
The
Company invited the applicant to a disciplinary hearing. The
applicant attended the disciplinary hearing. Two members of
the
Trade Union represented him.




The
disciplinary hearing concluded that the applicant had stolen the
tyre. Theft was a serious offence warranting summary dismissal.
The
applicant was dismissed from employment in accordance with Clause
3:11 of the Company’s Disciplinary Code.




THE LAW


Reason

Section
31 of the Constitution guarantees every person the right to fair
labour practices. This right entails that before a person
is
dismissed from employment, he must be given the reason for that
dismissal. The reason is given to allow an employee who is accused
of
misconduct or incapacity to state his case and defend himself, see
Dr
B S Chawani V The Attorney General
(MSCA
Civil Appeal No. 18 of 2000 unreported.))




The court
was convinced that there was a reason for which disciplinary action
could be taken against the applicant. The law provides
that before
any action can be taken, the accused employee must be notified of the
reason with particulars of the allegations in
good time so that he
can prepare his case and defend himself.




Procedure

The
law provides that an employee must not be condemned to dismissal for
reason connected with his conduct or capacity before he
is afforded
an opportunity to state his case and defend himself, see generally
Mendulo V Malawi Revenue Authority (Matter
No. IRC 161 of 2003 (unreported)).



In the
instant case evidence was adduced that the applicant was given notice
of disciplinary hearing. He was represented at the
hearing by members
of the Trade Union (shop stewards). The hearing took two days and on
both days the applicant was heard. During
the hearing the applicant
explained what he knew about the allegation. The conclusion of the
disciplinary hearing was summary dismissal
after a finding of theft
of company property contrary to the company’s Disciplinary Code,
Clause 3.11.



The court
cannot interfere with the results or recommendations of the
disciplinary hearing. The duty of the Court is to find from
facts
whether or not there was a fair hearing? Whether or not the applicant
was given opportunity in good faith to explain his
side and defend
himself? Where the disciplinary hearing was properly constituted the
Court has no authority to make contrary findings.
In any case the
company disciplinary committee had the benefit of interviewing
witnesses at the time the offence was committed.




FINDING


The court finds that the
respondent complied with fair labour practices. They gave the
applicant a reason before dismissal and he
appeared before a properly
constituted disciplinary committee to state his case. Summary
dismissal was justified in a theft case.
The action is therefore
dismissed in its entirety. The applicant is neither entitled to long
service pay, notice pay nor repatriation
costs because the dismissal
was fair for reason relating to his conduct.




Pronounced
in open Court
this 12th
day of March 2004 at
LIMBE.








R.Zibelu
Banda (Ms.)


DEPUTY CHAIRPERSON