Jambo v International Freight Agency (IRC 270 of 2003) (270 of 2003) [2005] MWIRC 22 (30 March 2005);

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IN THE INDUSTRIAL RELATIONS COURT OF MALAWI


PRINCIPAL REGISTRY


MATTERS NO. IRC 270 OF 2003


BETWEEN:


JAMBO...………………...……...…………………………... APPLICANT


-and-


INTERNATIONAL FREIGHT AGENCY.……………...RESPONDENT



CORAM: R. Zibelu Banda (Ms); Chairperson

Applicant; present.

Respondent; Munthali- Assistant Operations Manager

Ngalauka; Court Clerk



JUDGMENT

Dismissal--Reason for dismissal- Negligence-Leading to loss of company property-Shortage-Procedure- Opportunity to be heard- and defend oneself-Interference with employer’s decision.


Facts

The applicant was employed on 19 January 1987. He was dismissed on 1 August 2003 for negligence. The applicant challenged the dismissal alleging that the reason was not valid. The respondent on the other hand contended that the reason as valid and that the applicant was given a chance to state his case and defend himself.


The Law

Reason

In all unilateral terminations of employment by the employer he must give reasons for the termination. This is a requirement under section 57(1) of the Employment Act. If an employer fails to comply with this requirement the termination is unfair.


The burden of proving that there was a reason for dismissal is on the employer. The Court must then determine whether the reason was valid. This requirement is fundamental in fair labour practices. It was held in Earl v. Slater & Wheeler (Airlyne) Ltd. [1973]1 WLR 51 at 55 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 our own legislation governing employment the law in section 61(1) of the Employment Act provides that:


“In any claim or complaint arising out of the dismissal of an employee, it shall be for the employer to provide the reason for dismissal and if the employer fails to do so, there shall be a conclusive presumption that the dismissal was unfair.”


In the instant case it was heard that the applicant was Warehouse Supervisor at the material time. He was asked to load certain bags of tea. The applicant as supervisor noticed a shortage, however he did not know how the shortage had come about. He alleged that he was not in charge of this particular Warehouse therefore any shortage was not his responsibility. The respondent averred that as Warehouse Supervisor, the applicant was responsible for any tea that was loaded under his supervision. The shortage was therefore attributed to him. The applicant was therefore responsible for the shortage through negligence. The court finds that there was valid reason for which the respondent could take disciplinary action. However before any disciplinary action could be taken the applicant was entitled to a hearing, normally termed as procedural justice.



Procedure

An employer having a valid reason for which they could dismiss an employee would not act fairly by dismissing without conducting an inquiry aimed at giving the employee an opportunity to explain his case and defend himself, see Polkey A E Dayton Services Ltd [1987] 3 All ER 974.


In this case the applicant was invited to explain what had happened. He asserted that he was not responsible for any shortages that were uncovered in this particular warehouse because he was not responsible for the warehouse. However the respondent was able to demonstrate that being in charge of loading in that warehouse, the applicant was responsible for the shortage.

It was the Court’s view that the respondent had established that the reason for dismissal was valid and that they had afforded the applicant the opportunity to be heard, through an oral hearing between the applicant and management, see Khoswe V National Bank of Malawi [civil Cause No. 718/ 2002 (unreported)].


Gross negligence of duties is serious industrial misconduct especially where it leads to loss of company resources or brings the company’s reputation into disrepute among its valuable clients, see generally, Bandawe V ADMARC [Matter No. 100/2000 (unreported)] and Kambewa V Malawi Distilleries Ltd [Matter No. 81/2003 (unreported)].


Interference with employer’s decision.

It has been held in this Court that decisions of employers should not be tampered with if there is no allegation that the process to arrive at the decision was not fair, see Kachingwe &others V Southern Bottlers Mw Ltd [Matter No.162 of 2003(unreported)]. In that case the Court quoted with approval a holding of the Labour Appeal Court of South Africa in the case of County Fair Foods (Pty) Ltd V CCMA & others [1999]11BLLR 1117 (LAC), per Kroon JA:


“[interference] with the employer’s sanction “ is only justified in the case of ……..unfairness.” However, the decision of the arbitrator as to the fairness or unfairness of the employer’s decision is not reached with reference to the evidential material that was before the employer at the time of its decision but on the basis of all evidential material before the arbitrator. To that extent the proceedings are a hearing de novo.”


In the instant case, the Court has no reason to interfere with the sanction imposed by the respondent.


Previous Conduct

The court heard that the applicant had previous warnings relating to negligence and other issues related to dishonesty. Previous warnings issued to an employee form basis for dismissal, see Prindella V Limbe leaf tobacco Ltd [Matter Number IRC 49 of 2002 (unreported)].



Finding

The Court finds that the respondent complied with the law. The dismissal was fair. Action is dismissed in its entirety.



Pronounced in Open Court this 30th day of March 2005 at LIMBE.




R. Zibelu Banda (Ms.)

CHAIRPERSON.