Kansipu and Others v Movesa (IRC 152 f 20033 ) (NULL) [2005] MWIRC 41 (02 May 2005);

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N THE INDUSTRIAL RELATIONS COURT OF MALAWI


LILONGWE REGISTRY


MATTER NO. IRC 152 OF 2003


BETWEEN:


KANSIPU AND OTHERS……………………………….APPLICANTS


-and-


MOVESA………………………..….....…………………...RESPONDENT



CORAM: R. Zibelu Banda (Ms), Chairperson

Applicants: Kansipu

Zuwaleyi

Yissa

Respondent: Absent

Mpakani; Court clerk



JUDGMENT

Dismissal- Reason for dismissal-Burden on employer to show reason for dismissal- Procedure for dismissal- Investigations- Police involvement- Whether police should conduct disciplinary hearing for the employer.


Facts

The respondent employed the three applicants on various dates. The applicants were dismissed on 14 January 2003. The dismissal was related to theft. The applicants challenged the dismissal because they were not heard. The reason was based on suspicions, which the respondent did not investigate. Instead the respondent surrendered the applicants to the police. There was no formal termination. The applicants were told to wait for police findings and were not allowed to work till the time they lodged their complaint with the court.




The Law

Section 57 of the Employment Act provides that employees must be given reasons for dismissal and must be afforded an opportunity to explain their side and defend themselves; see Prindella V. Limbe Leaf Tobacco Company Ltd [Matter No. IRC 49 of 2002 (unreported)].


Employer has the burden of showing the reason for dismissal; see section 61 of Employment Act. Where no reason is given there is a presumption that the dismissal was unfair. See Earl v. Slater and Wheeler (Airlyne) Ltd [1973] 1 WLR 51.


In the instant case the respondent did not attend hearing. There was no excuse for the failure to attend court. The court record showed that the respondent through their legal counsel had previously applied for an adjournment in respect of a hearing set for 28 February 2005. The court granted the respondent an adjournment, although the application for the adjournment did not comply with provisions of Rule 17 (2) of the Industrial Relations Court (Procedure) Rules 1999 which prohibits postponement of a case within two weeks of hearing unless the court grants leave; also see Kaonga V Limbe Leaf Tobacco Company [Matter Number IRC 65 of 2002(unreported)].


At the hearing leading to this judgment, the respondent did not send any word nor did they seek an adjournment in accordance with the said Rule. The court had to order the matter to proceed in accordance with section 74 of the Labour Relations Act.


Reason and Procedure

The respondent might have had reason to dismiss the applicants. However, the court must find whether the reason was reached after investigation and inquiry which would involve hearing the applicants’ side. It is only after hearing from the applicants that the respondent would have been able to determine an appropriate administrative action to take against the applicants.


In Polkey v A E Dayton Services Ltd [1987] 3 All ER 974,at 983, the House of Lords quoted with approval the following observations of Neill LJ sitting in the court of appeal in the same case [1987] 1 All ER 984 at 989:


“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.”


In the instant case the evidence showed that the respondent did not ask the applicants to state their case nor defend themselves. Instead the respondent made the applicants to be arrested by police and let the police carry out investigations leading to criminal prosecution. The only basis for dismissing was an allegation of theft without any further investigations by the respondent.


Employers should avoid abandoning their responsibilities of administrative process in preference to police interference. Employers must conduct their own investigations and inquiries to determine whether to dismiss or to take other action. This is what is referred to as fair procedure.


In Read v. Phoenix Preservation Ltd (1985), The Employment Appeal Tribunal (EAT) said it would be:


“Wholly improper for an employer to allow the police to be present at an internal hearing without the employee’s foreknowledge and consent. In any event, a police officer should not be allowed to conduct the disciplinary hearing on behalf of the company”.


In the instant case, the police handled the applicants but this was not a disciplinary hearing as demanded by law and modern good industrial practice. The respondent dismissed the applicants before giving them an opportunity to explain their side and defend themselves.


FINDING

The respondent violated section 57(2) of the Employment Act and in accordance with section 58 of the same Act the dismissal was unfair. Therefore, the court finds that the dismissal of the three applicants was unfair.


REMEDIES

The applicants are entitled to a remedy as provided for under section 63 of the Employment Act. The court shall set down a date for assessment of an appropriate remedy. All parties will be required to appear for the assessment. The burden of proving loss for unfair dismissal is on the employee. Therefore the applicants must be prepared to show their loss in court. If need be the applicants are advised to seek professional advice on the heads of remedies that they can claim.


Any party not satisfied with this decision is at liberty to invoke provisions of section 65 (2) of the Labour Relations Act and appeal to the High Court 30 days from this date.


Pronounced in open Court this 2nd day of May 2005 at Lilongwe.



R. Zibelu Banda (Ms.)

CHAIRPERSON