IN THE INDUSTRIAL RELATIONS COURT OF MALAWI
MATTER NO. IRC 288 OF 2003
NATIONAL BANK OF MALAWI ... .RESPONDENT
CORAM: R. Zibelu Banda (Ms), Deputy Chairperson
Mwabungulu, Counsel for the respondent
Mbewe Court Clerk
Dismissal- Reason- Employer to provide reason- Burden of proof- Insubordination-Procedure- Right to be heard and defend oneself-Employers decision not to be interfered with.
The applicant was employed on 4 November 1975. He was dismissed by letter of 6 November 2003. The reason for dismissal was insubordination. The applicant challenged the dismissal alleging that the reason was not valid and that he was not given an opportunity to be heard. The respondent asserted that insubordination was serious misconduct warranting dismissal and that the applicant was heard.
The court was called upon to decide whether under the circumstances of the case as provided in evidence, the dismissal was fair or unfair. The court had the benefit of hearing both parties at length. What came out in evidence was the following:
The applicant was employed as Support Services Officer. He informed court that he was not given a job description. However he was able to work and carry out his duties as assigned to him from time to time. The applicant was never instructed to or assigned to drive a mini bus without the requisite driving licence for that particular vehicle. It was heard that in order to drive a mini bus the driver was under legal obligation to possess a PSV class driving licence. The applicant did not possess this PSV licence. Under traffic laws and under implied conditions of employment he was not entitled to drive a mini bus. The applicant in contravention of these traffic laws and the implied conditions of employment he drove the mini bus. The respondent established that the applicant had driven a mini bus without the requisite PSV driving licence. The respondent warned the applicant in a letter, which the applicant was required to sign for to signify an understanding that he had contravened company regulations and the law. The applicant refused to sign this warning letter alleging that it was written in bad faith. This insubordination led to the dismissal.
However before the dismissal, the applicant was invited to a disciplinary hearing to explain why he had refused to carry out the instruction to sign the warning letter, which was part of disciplinary process. The applicant explained his side, that the warning was written in bad faith. He explained at that hearing that he drove the minibus because there was a crisis. He described the nature of the crisis.
The respondent was not convinced with the explanation of the applicant as to why he had refused to carry out lawful instruction constituting disciplinary process and why he had driven a mini bus in contravention of the law. The respondent, reached the conclusion that the applicants employment contract be terminated. In arriving at this decision, the respondent made reference to previous disciplinary issues, including verbal and written warnings issued to the applicant over the years for various acts of misconduct.
The issue before court was whether the dismissal was carried out fairly. A dismissal is fair if the applicant is given valid reason for the dismissal; and where the reason relates to the applicants conduct or capacity, whether the respondent afforded the applicant an opportunity to be heard.
Section 57 of the Employment Act provides that every employee must be informed of the reason for his dismissal. It also provides that the employee must be given an opportunity to explain his case and defend himself.
Section 61 of the Employment Act places the burden of showing the reason for dismissal on the respondent. It was thus held in Earl v. Slater and Wheeler,  1 WLR 51:
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 this case the respondent had a prima facie reason for which to take disciplinary action. The reason was insubordination. The applicant was not authorized to drive a mini bus without valid driving licence under any circumstances. The applicant drove a mini bus without authorization from his superiors. Having been cautioned the applicant refused to sign for the caution statement, in essence he challenged his superiors about their judgment that contravention of company policy implied from national laws was not a matter for disciplinary action.
In the instant case the court finds that there was valid reason for which the applicant could be dismissed. The applicant had displayed conduct that called for disciplinary action.
However before the disciplinary action could be taken the applicant was entitled to have his case heard and to defend himself. The England Appeal Court in Polkey V A E Dayton Services Ltd 3 All ER 974 at 984, held; per Lord Bridge of Harwich:
An employer having prima facie grounds to dismiss will in the great majority of cases not act reasonably in treating the reason as sufficient reason for dismissal unless and until he has taken the steps, conveniently classified in most of the authorities as procedural, which are necessary in the circumstances of the case to justify that course of action. Thus, in the case of ..misconduct, the employer will normally not act reasonably unless he investigates the complaint of misconduct fully and fairly and hears whatever the employee wishes to say in his defence or in explanation or mitigation.
In the instant case the respondent called the applicant for a hearing to establish why he had driven a vehicle without a valid driving licence and why having been cautioned for such misconduct, he refused to sign the caution statement. The applicant challenged the disciplinary hearing alleging that the composition of the hearing panel was biased as it comprised personnel who had an interest in the matter. He also alleged that he was not given any opportunity to say anything other than answer yes of no to set questions.
The court after assessing the evidence of the applicant and respondent found that if the composition of the hearing panel was not properly constituted, the applicant should have objected at the hearing before commencing the hearing. The applicant did not show that this composition was imposed on him on the day of the hearing and that he had no opportunity to raise his fears at the hearing. The court finds that the hearing panel was properly constituted.
The applicants allegations that he was not given an opportunity to explain his side and that he was not given an opportunity to bring in members of workers union and that the decision was premeditated lack merit. The applicant is very eloquent, had worked for over 20 years for the respondent, he was aware of the company policy and procedure on disciplinary issues and therefore, if there was requirement to explain, he would and should have explained his side. If this requirement was denied to him, he was at liberty to appeal against the decision within the establishment. Similarly, if the applicant was entitled and was so minded to bring members of trade union to the hearing, the applicant could and should have brought members of trade union to represent him at the hearing. The applicant portrayed a picture of a man, who would not be intimidated and denied his legal rights. In any case, he showed that he was completely aware of his legal rights, reference is made to his written statement summarizing his case before court.
The court finds from the evidence and the demeanor of the parties that the applicant was given an opportunity to explain his side and that he explained his side, namely, why he drove a mini bus without a licence and why he refused to sign a caution statement. It must be stated that the respondent was told that the warning was issued in bad faith and that was why the applicant refused to sign it. It must also be noted that the respondent was told that the mini bus was driven because of a crisis. All this information came from the applicant himself, therefore the courts conclusion is that the applicant stated his case. However, he was not convinced with the decision to terminate his services after the explanation. The respondent showed that the applicant had previous written and verbal warnings relating to misconduct, which were taken into consideration when deciding whether to dismiss the applicant or not.
The court would like to make brief notes on the legal implications of the allegations for which the applicant was dismissed.
It is a serious industrial misconduct to refuse to take lawful instructions from employers. Section 59 of the Employment Act provides that willful disobedience to lawful orders given by the employer is ground for summary dismissal.
This court held in Mussa V Securicor Malawi (Matter No. IRC 2 of 2000 (unreported)) that insubordination calls for summary dismissal. The court further held in that case that:
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.
This is the position taken in other jurisdictions as well, for instance, in the English case of 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.
Breaking national laws:
Traffic laws form part of the laws of Malawi. Any employment contract must adhere to national laws. No employer would knowingly allow his employees to break national laws. The employer need not even indicate in the employment contract that employees must not break national laws, because this is implied.
An employer in entitled to discipline his employees who break traffic laws because contravention of traffic laws may not only affect the employee but also the employer. For instance, if the employee is involved in a road accident, the employer, may have problems claiming from insurers and explaining to law enforcers where it is found that the employee did not have a valid diving licence.
The court finds that the respondent complied with fair labour practices as provided by law. The court can not interfere with the decision of the respondent, because it was arrived at after taking all reasonable factors into consideration, see, County Fair Foods (Pty) Ltd V CCMA & others 11BLLR 1117 (LAC),; including the fact that the applicant had previous warnings for various acts of misconduct, see Prindella V Limbe Leaf Tobacco Ltd [Matter NO IRC 49/ 2002(unreported)]. The action is dismissed in its entirety.
Pronounced in Open Court this 10th day of January 2005 at LIMBE.
R. Zibelu Banda (Ms.)