Bwanali v Southern Bottlers Ltd (IRC250 of 20033 ) (250 of 20033) [2005] MWIRC 49 (03 June 2005);

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IN THE INDUSTRIAL RELATIONS COURT OF MALAWI


LILONGWE REGISTRY


MATTER NO. IRC 250 OF 2003


BETWEEN:


BWANALI……..……………………………………………. APPLICANT


-and-

SOUTHERN BOTTLERS LTD...………………………..RESPONDENT



CORAM: R. Zibelu Banda (Ms), Chairperson

Applicant- present

Respondent- Dzimba Regional Personal Manager

Mpakani, Court clerk

JUDGMENT

Dismissal- Justification for dismissal- Reason- Misconduct-Negligence-Taking unlawful instructions-Procedure-Right to be heard.

Facts

The respondent employed the applicant in October 1996. He was dismissed on 17 April 2002 while serving as Assistant Logistics Officer. The reason for dismissal was that the applicant had driven a commercial vehicle under unlawful instructions. The applicant appeared before a hearing where he explained that he drove the vehicle under instructions from his boss. The respondent contended that the instruction was unlawful and the applicant should not have acted upon it. The applicant challenged the dismissal alleging that the reason was not valid because he drove the vehicle under instruction, therefore the dismissal was unfair.


Issue

The issue is whether the respondent had a valid reason for dismissal.




The Law

Reason

Section 57 (1) of the Employment Act provides that an employee must be given a reason before any adverse action is taken against him. Where a reason is given, the court must determine whether the reason is valid and that it warranted the action taken by the employer, see Earl v. Slater and Wheeler (Airlyne) Ltd [1973] 1 WLR 51.


In the instant case the applicant admitted that he drove a commercial vehicle without a certificate that allows drivers to drive such vehicles. He however said he had a valid reason for driving. The reason was that his boss had instructed him to drive.


The respondent averred that the instruction was unlawful and therefore the applicant should not have driven the vehicle. In any case the applicant was employed as a commercial driver but as Assistant Logistics Manager. The respondent therefore asserted that the reason for dismissal was valid.


The court finds that the reason was prima facie valid for dismissal because the applicant was negligent of duties when he took unlawful instructions. The only instructions that employees must obey must be lawful, see section 59 of the Employment Act. In this case the applicant obeyed unlawful instruction therefore he is not protected by law; see Galasi V Four Seasons Nursery [Matter Number IRC 185 of 2004 (unreported)].


Procedure

Before any action is taken against an employee, section 57 (2) of the Employment Act provides that the employee must first be heard to explain his side and or to defend himself, see also Polkey V AE Dayton Services Ltd [1987]3 All ER 974.


In the instant case the court heard that the applicant was asked to explain his conduct. The applicant’s explanation was not satisfactory and the respondent accordingly dismissed the applicant. The respondent in deciding to dismiss took into account the fact that the applicant had also been involved in an accident while driving without lawful authority. The accident led to financial loss and injury to person for which the respondent was responsible.




Finding

The court finds that the respondent had a valid reason for dismissal. The respondent gave the applicant an opportunity to explain his side before the termination. The respondent complied with section 57 (1) and (2) of the Employment Act. The court does not have any basis for interfering with the decision of the respondent. The action is therefore dismissed.


Any party not satisfied with this decision is at liberty to appeal to the High Court in accordance with section 65 (2) of the Labour Relations Act, within 30 days of this judgment.


Pronounced in open court this 3rd day of June 2005 at Lilongwe.



R. Zibelu Banda (Ms.)

CHAIRPERSON.