Kazembe v Malawi Chamber of Commerce and Industry (IRC 313 of 2003 ) ( of ) [2005] MWIRC 12 (22 February 2005);

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IN THE INDUSTRIAL RELATIONS COURT OF MALAWI


PRINCIPAL REGISTRY


MATTER NO. IRC 313 OF 2003


BETWEEN:


KAZEMBE….………………………………………………. APPLICANT


-and-


MALAWI CHAMBER OF COMMERCE & INDUSTRY ….....................…………………………………………… RESPONDENT



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

Applicant; present

Khumalo, Accountant for Respondent

Ngalauka – Court Clerk



JUDGMENT

Dismissal- Summary dismissal-Justification-Grounds for dismissal-Failure to take reasonable and lawful orders from superiors-Loss occasioned due to omission-Procedure-Right to be heard.


Facts

The applicant was employed on 18 November 1985 as Messenger. He was dismissed on 9 October 2003 while working as Dispatch Rider. He was dismissed for failure to carry out lawful orders as instructed by his superiors. The applicant alleged that the dismissal was unfair because the reason was not valid. The respondent on the other hand contended that the reason was valid and the applicant was given an opportunity to be heard.

The Issue

The issue was whether the reason for dismissal was valid. The applicant was advised to deliver a Press Release to a Newspaper Company for publication. The publication was free with space donated by the Newspaper on condition that the Press Release arrived within a certain time. The respondent asked the applicant to deliver the press release and advised him the essence of keeping the time. In contravention of this order, the applicant did not deliver the Press Release in good time as prescribed, as a result the free space was lost and the Press Release was not published.


The Law

The burden of proving reason for dismissal lies on the employer. The employer must show the reason for dismissal and the court must assess whether that reason is valid. It was thus held in Earl v. Slater and Wheeler, [1973] 1 WLR 51 that:


“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 the instant case the respondent showed that the applicant refused to obey reasonable and lawful orders of his superiors. The court finds that the reason was valid. The next question is whether this reason was valid to justify dismissal.


Willful disobedience of lawful or reasonable authority is a serious industrial misconduct. Statutory law, common law and industrial practice all condemn such conduct. For example: Section 59 of the Employment Act, provides that an employee would be dismissed summarily where he willfully disobeyed lawful orders of his employer.


Secondly, conditions of service provided for the respondent, which applied to the applicant also provides that willful disobedience to lawful orders given by the employer is ground for summary dismissal.


Thirdly, 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.




Fourthly, in common law jurisdiction like in England the courts recognize and accept that such misconduct is ground for summary dismissal. In 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.

Finding

The respondent has proved that the applicant had committed a serious industrial misconduct and the respondent was entitled to dismiss the applicant. The dismissal was in accordance with the law. The dismissal was fair and therefore the action is dismissed in its entirety.


Pronounced in open court this 22nd day of February 2005 at LIMBE.




R. Zibelu Banda (Ms.)

CHAIRPERSON