Court name
Industrial Relations Court
Case number
IRC Matter 51 of 2001

Wadabwa v Union Transport (IRC Matter 51 of 2001) [2005] MWIRC 13 (21 February 2005);

Law report citations
Media neutral citation
[2005] MWIRC 13





IN THE
INDUSTRIAL RELATIONS COURT OF MALAWI




PRINCIPAL REGISTRY



MATTER
NO. IRC 51 OF 2001




BETWEEN:




WADABWA…………………………...…………………….
APPLICANT




-and-




UNION TRANSPORT……………………………………
RESPONDENT






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


Tembenu/
Mambulasa of Counsels for respondent


Dzonzi of Counsel for
applicant


Ngalauka; Court Clerk






JUDGMENT


Dismissal-Justification-Grounds
for dismissal-Negligence-Reckless driving -Right to be
heard-Notice-Investigations-Confrontation
of witnesses-Failure to
attend a hearing-Reasons for failure-Whether reasonable.




Facts

The
applicant was employed on 1 March 1994 as driver. He was dismissed on
7 December 2000. The reason for dismissal was driving
a company
vehicle negligently and that the shipment the applicant was bringing
to Lilongwe from Blantyre arrived in a bad state.
The applicant
denied the allegations and challenged the dismissal on that basis and
on the basis that he was not given the opportunity
to be heard before
dismissal. The issue is whether the dismissal was fair.




The Law


A
dismissal is fair if it complies with section 57 of the Employment
Act. This section provides the manner and procedure that must
be
followed before terminating any contract of employment. The
requirements are that there must be a reason, which must be valid.

The burden of proving reasons for dismissal lies on the employer. The
employer must show reasons for dismissal and the court must
assess
whether those reasons are 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 who was
employed as driver was accused of driving recklessly in the
City of
Lilongwe. At the time the applicant was ferrying client’s goods
from Blantyre to Lilongwe. The goods were not properly
handled and
they were damaged. These two allegations are serious enough to
warrant disciplinary action. The court finds that there
was valid
reason for instituting disciplinary proceedings.




Procedure


  1. Adequate notice


The next
test is whether the respondent having found a valid reason for which
to take out disciplinary action against the applicant,
did follow
reasonable procedures. Disciplinary action is reasonable, where it is
found that the employer informed the employee
in good time of the
allegation leveled against him. The need for adequate notice is to
allow the employee to prepare for his case.




  1. Investigations


Further
depending on the circumstances of the case, an employer must carry
out thorough investigations to enable him make an informed
decision,
see,
Chitembeya V Malawi posts Corporation
[Matter No. IRC 87/2001 (unreported).]





  1. Confrontation


Where
the allegations got the employer through an informer and the employee
denies the allegations, the employer is under obligation
to invite
the informer so that the employee can confront the informer, see,

Khoswe V National Bank of Malawi
[Civil
Cause No. 718/2002 (unreported).]




In the
instant case the applicant told court that he was informed in the
morning that he would be required to attend a hearing in
the
afternoon, 2.00 PM of the same day. The respondent then sent off the
applicant to carry out some errands in the City of Lilongwe.
The
errands involved paying bills to utility companies, delivering goods
to clients and depositing cash to a bank. He was driving
a company
vehicle.



The
question is firstly, whether the applicant had been given adequate
time to prepare for his case at 2.00 PM on the material date?
The
answer, according to the applicant was no. He stated that he was not
able to make it in good time for the hearing because of
the nature of
the errands. By the time he came back from carrying out his duties it
was after 2.00 PM. The court agrees with the
applicant that he was
not given enough time to prepare for his case.




Secondly,
did the respondent carry out investigations? The allegation was
reported to the respondent by a third party. The respondent
was
obliged to investigate to establish the truth. The respondent told
court that he investigated the allegation through an encounter
with
the complainant. This investigation was not enough because the
accused employee was not given an opportunity to explain his
part of
the story. The investigations were one sided therefore chances of
bias were high.




Thirdly,
after hearing from the informer and a brief denial from the
applicant, the respondent was obliged to bring forward the
informer
so that the applicant could confront her. The court was told that the
informer was available for confrontation but she
would have to be
called only if she was required. The applicant could not make it for
the hearing and the hearing did not take
place therefore the court
cannot make a finding whether the informer was available or not for
confrontation.




Reasonableness

It
is trite law that in all employment cases an employer must act
reasonably when confronted with the issue of discipline of employees,

see generally, Polkey V A E Dayton Services
Ltd
(1987) 3 All ER 974 at 983 holding
that:





“Where
an employee is dismissed for alleged misconduct and he then
complains that he was unfairly dismissed, it is to be anticipated

that the industrial tribunal will usually need to consider (a) the
nature and gravity of the alleged misconduct, (b) the information
on
which the employer based his decision,(c) whether there was any
other information, which that employer could or should have
obtained
or any other step which he should have taken before he dismissed the
employee.”



Further, section 56(5) of
the Employment Act provides that:



“In deciding whether the
employer has acted reasonably, regard shall be had to the nature of
the violation, the employee’s duties,
the penalty imposed by the
employer, the procedure followed by the employer, the nature of any
damage incurred and the previous
conduct and the circumstances of
the employee.”





This
provision relates to disciplinary action other than dismissal and
therefore relevant to this case. However the provision raises
some
important factors to consider when deciding a case involving
employee’s conduct.




In the
instant case, the court finds that the allegations were not
thoroughly investigated; the applicant was not given enough time
to
prepare for his case and was not give an opportunity to be heard.
This was violation of section 57 (2) of the Employment Act,
rendering
the dismissal unfair.




Finding



The court finds that the
dismissal was unfair. The respondent violated provisions under
section 57(2) of the Employment Act.





Assessment


The court shall set down
the matter on a date to be fixed for hearing of assessment of an
appropriate remedy pursuant to section
63 of the Employment Act.





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








R.
Zibelu Banda (Ms.)


CHAIRPERSON